Compensation for unused vacation how many days. What is compensation for unused vacation? How to arrange cash payments instead of the required rest? Let's define the problem

Each employee can count on payments upon dismissal. When it will be only a refund of unused vacation days, and when larger amounts are due, we will tell in the article.

Read in the article:

Labor Code: compensation upon dismissal

According to Art. 140 of the Labor Code of the Russian Federation, on the day of leaving work, the employee must receive all the amounts due to him. This list consists not only of the money earned over the past month, but also of compensation payments. Their size and list depends primarily on the reason for termination of the contract.

Compliance with the timing of the issuance of money is a priority for the company. After all, the GIT check that came during the year will certainly punish an unscrupulous employer (Article 5.27 of the Code of Administrative Offenses of the Russian Federation). And not only impose a fine, but it can reach 50,000 rubles. for legal entities, but also force to pay compensation for the delay in the transfer of amounts. Its size will be 1/150 of the key rate Central Bank RF on the date of transfer for each day of delay.

And if delays in the company are massive, then a fine will be assigned for each individual case, which will result in a round sum for the employer. With a longer delay (more than 3 months), criminal liability may arise for the head (Article 145.1 of the Criminal Code of the Russian Federation).

early termination

When liquidating or downsizing, the company must warn the staff about the upcoming changes. Such a procedure is carried out at least 2 months before the expected date of termination of the contract. In this case, even before the expiration of the warning period, the contract may be terminated with the consent of the worker.

For the entire period up to the originally planned departure date, the employee is paid a cash allowance based on the average monthly income.

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

Each officially employed citizen has a number of rights and freedoms that are protected by labor legislation. In particular, this applies to the right to a well-deserved rest or its compensation in monetary terms.

Right to compensation

According to labor law, replacement of vacation with monetary compensation is possible if the employee voluntarily agreed to this. For example, in 2016, an employee did not take his vacation or part of it, thereby postponing it to 2017.

Not every employer can provide an employee with more than 28 calendar days of rest per year, so the rest is usually compensated in cash. In fact, the unspent part of the holiday is replaced by additional payments. Article 126 of the Labor Code implies that financial compensation due only for that part of the vacation which exceeds established by law 28 calendar days. For example, workers in the Far North are additionally entitled to 24 calendar days of rest. It is them that the employer can replace with a cash payment, based on the average wages.

Retirement Compensation

Labor legislation in Article 127 clearly indicates that monetary compensation for unused vacation must be paid by the employer in favor of the employee upon dismissal. The final settlement includes payments for hours worked, bonuses due and additional funds, payments for rest that has not been used. The right of the employee remains vacation followed by dismissal. For example, before leaving workplace, a citizen has the right to receive all due days of rest, and not financial compensation. The length of service during the vacation period is not interrupted, and the workplace is retained by the employee. It is impossible to fire him during this period of time. The employee has the right to change his mind about leaving own will by writing an appropriate application at least 14 calendar days before the end of the employment contract.

Who has a vacation of more than 28 calendar days

Vacation of civil servants

According to the law, civil servants are entitled to additional leave for seniority and irregular working hours. Days of rest for length of service are accrued depending on the length of service of the employee. Read more in this

In addition to workers in the Far North, there are categories of workers who are entitled to rest for more than 28 calendar days. These categories have the right to replace vacation with monetary compensation in 2019 at their own request. These specialists are:

1. employees of the pedagogical sphere;
2. medical workers;
3. workers with disabilities;
4. scientists of higher educational institutions;
5. civil servants of the state civil service;
6. workers performing research work.

Each of the employees in this area has the right to rest 28 calendar days a year at the expense of the employer, and for the remaining days to receive compensation in cash. The employer, in turn, has the right to refuse payment, insisting on the full rest of the employee.

How to get compensation

Since the employer has the right to refuse to replace annual paid leave with monetary compensation, the employee must know exactly how to receive the funds due. First of all, it is necessary to write an application addressed to the head, which indicates the period of additional paid leave, which should be replaced by a material payment. The employer is obliged to consider the application within three working days, and then issue an appropriate order.

Who is not entitled to compensation

Employees employed in complex, hazardous and hazardous industries, and having a vacation of more than 28 calendar days, do not have the right to replace extra days material payment. First of all, this is due to working conditions that are difficult and unhealthy. That is why the employer has the right to refuse to provide payments on a legal basis. As practice shows, partial compensations are paid to employees engaged in hazardous production, but in total they do not exceed seven calendar days of vacation.

To whom and when compensation is paid for unused vacation - see the video below:

Employees who are under the age of 18 at the time of the holiday cannot claim to replace the holiday with money. Article 126 of the Labor Code prohibits minors from receiving compensation instead of annual paid rest. The same rule applies to pregnant women who go on maternity and employer-paid leave.

Registration of compensation

After receiving, considering and signing the employee's application, the employer is obliged to issue an order for compensation for unused vacation according to the established model. The order includes a description of the period that must be replaced by a material payment, the exact dates are written in the text of the order. In addition, the period by which payments must be accrued in full is indicated.

How the amount is calculated

For unused vacation, compensation is calculated based on the average salary of the employee. The total annual salary is divided into 12 calendar months, after which it is divided by the average number of days in one month. The amount received is the average daily salary, which is the basis for calculating compensation for unused vacation. The number of days not taken off is multiplied by the average daily wage, where the result will be the amount of the payment.

You can ask the lawyer any questions you have in the comments below.

The only active normative document, explaining the procedure for calculating compensation for unused vacation, remain the Rules on regular and additional holidays, approved by the NCT of the USSR on April 30, 1930 No. 169 (hereinafter referred to as the Rules).

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

According to paragraph 28 of the Rules on Regular and Additional Leaves, approved by the NCT of the USSR on April 30, 1930 N 169, upon dismissal of an employee who did not use his right to leave, he is paid compensation for unused leave.

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

An employee who continues to work, upon his written application, can only be replaced by monetary compensation for that part of the annual paid leave that exceeds 28 calendar days (the basis is Article 126 of the Labor Code of the Russian Federation).

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

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

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

Example 1

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

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

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

• liquidation of an enterprise (institution) or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work;
• admission to active military service;
• business trips in accordance with the established procedure to universities, technical schools, to preparatory departments at universities;
• transfer to another job at the suggestion of labor authorities or commissions attached to them, as well as professional organizations;
• found unfit for work.

Example 2

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

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

The current legislation does not provide for the possibility of rounding the days of unused vacation to integers (2.33 days, 4.66 days, etc.).

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

Rounding to integer values ​​of the number of days of unused vacation is not performed in the calculations given as examples in the letters of Rostrud dated July 26, 2006 No. 1133-6, dated June 23, 2006 No. 944-6.

As a rule, the last month of vacation experience is incomplete. If 15 calendar days or more have been worked in it, this month of experience is rounded up to the full. If less than 15 days have been worked, the days of the month are not taken into account (Article 423 of the Labor Code of the Russian Federation, clause 35 of the Rules, letter of Rostrud dated 06/23/2006 No. 944-6).

Example 3

An employee of the organization was hired on September 27, 2008, and from May 4, 2009 he leaves of his own free will. It is required to determine for how many months he is entitled to compensation for unused vacation, if he has never been on vacation.

According to paragraph 35 of the Rules and Article 423 of the Labor Code of the Russian Federation, when determining the number of vacation days for which the employee is paid compensation upon dismissal, it must be taken into account that if the employee has worked less than half a month, the specified time is excluded from the calculation, and if half or more than half a month has been worked, the specified period is rounded up to a full month. The period for granting leave is from September 27, 2008 to September 26, 2009. From 27.09.2008 to 26.04.2009 the employee completed seven months of work. The period from April 27 to May 4 is eight calendar days, which is less than half a month. Therefore, this period is not taken into account.

Thus, in this case, the total number of months for which the employee is compensated is seven. The number of days of unused vacation is calculated by the formula:

Kn \u003d Co x 2.33 days - Ko,
where Kn is the number of days of the main vacation that the employee did not take off by the time of dismissal; Co - the duration of the vacation period in full months; Ko - the number of days of the main vacation that the employee took off by the time of dismissal.

Example 4

The employee was hired on December 3, 2008 and fired on October 31, 2009. In June 2009 he was on basic leave for 14 calendar days, and in August 2009 he was on leave without pay for 31 calendar days. In total, the employee worked in the organization for 10 months and 29 days.
Since the duration of the vacation at their own expense exceeded 14 calendar days per working year, the total work experience of the employee should be reduced by 17 calendar days (31 - 14).
The employee's vacation period will be 10 months and 12 calendar days (10 months 29 days - 17 days). Since 12 calendar days are less than half a month, they do not count.
Therefore, 10 full months are counted in the length of service giving the right to leave.
The employee took two weeks of the main vacation. You don't need to pay compensation for them. Thus, in the case under consideration, the employee is entitled to compensation for 9.3 calendar days (10 months x 2.33 days - 14 days).

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

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

Example 5

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

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

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

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

Example 6

On November 2, 2009, an employment contract was concluded with the employee for an indefinite period. The employee quits at his own request from December 14, 2009. It is required to calculate the number of calendar days of compensation for unused vacation upon dismissal.

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

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

In educational budget organizations teachers and lecturers who leave after 10 months school year, are entitled to receive compensation for the full duration of the vacation of 56 calendar days. If a teacher leaves during the academic year, then he is entitled to proportional compensation at the rate of 4.67 days for each month worked.

Example 7

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

Upon dismissal, full compensation for unused vacation is paid in the amount of full vacation if the employee worked for 11 months in the corresponding calendar year.

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

Example 8

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

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

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

Example 9

The employee is dismissed from March 25, 2009 under clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation "by agreement of the parties." In his application, the employee asks to provide him with unused leave for the last working year before dismissal (28 calendar days). On the day of dismissal, the employee worked 8 months and 9 days in the current working year. It is required to determine the length of service for granting vacation, the actual duration of the vacation and the date of dismissal.

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

Leave is granted from March 26 to April 13, 2009. This means that it is April 13 that is the day the employee is dismissed, in connection with which, until April 13, 2009, the length of service giving the right to paid leave should be taken into account.

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

The employer is obliged to keep records of the periods of time for which the employee is granted basic leave. The personnel service reflects these periods in the order (instruction) on granting leave to the employee, drawn up in the form No. T-6 (T-6a). On the basis of the order, marks are made in the employee's personal card (form No. T-2), in the personal account (form No. T-54, T-54a), in the note-calculation on granting leave to the employee (form No. T-60). All forms of these documents and instructions for filling them out are approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1.

Amount of compensation for unused vacation

The procedure for calculating compensation follows from clause 8 of the Regulation, approved by Decree of the Government of the Russian Federation of 11.04.2003 No. 213, and the decision of the Supreme Court of the Russian Federation of 13.07.2006 No. GKPI06-637.
Based on these documents, the following formula can be derived:

Accounting

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

accounting entries (When you hover over the account number, a tooltip appears)
Debit	Credit	Sum (rub.)	Content

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

Pavel Sutulin,
Legal consulting service expert GARANT

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

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

The proportion in this case should look like this:

M 0: 12 = K y: K 0,

where
Mo - the number of months worked by the employee;
12 - the number of months in a year;
Ku - the number of vacation days for which the employee received the right by the time of dismissal;
Ko - the number of days of annual paid leave of the employee.

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

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

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

Example

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

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

Thus, in fact, Rostrud proposes to break the above formula into two separate arithmetic operations:

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

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

The use of this calculation procedure leads to obviously absurd situations.

Example

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

2.33 days x 6 months = 13.98 days.

At the same time, the application of the Rostrud methodology is reflected in judicial practice.
However, even if the employer considers it acceptable to use this approach to calculating the number of vacation days earned by an employee, please note that it is impossible for all employees without exception to determine the number of vacation days due at the rate of 2.33 calendar days of vacation for each month of service. 2.33 days of vacation per month of service are allowed only for those employees whose annual paid leave is 28 calendar days. If the full vacation is more than 28 days, then the number of vacation days per month of experience will be more than 2.33. For example, a teacher whose vacation is 56 calendar days is entitled to 4.67 calendar days of vacation (56 days: 12 months) per month of vacation experience.

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

Example

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

At the same time, the position of the Ministry of Health and Social Development of Russia once again proves the illegality of the procedure for calculating the number of vacation days proposed by Rostrud. Since the use of the value 2.33 as an intermediate for further calculations is not necessary, in this case the number 2, (3) would have to be rounded up, that is, up to 2.34.

Determining the number of months of vacation experience for an employee

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

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

Example

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

As mentioned above, paragraph 28 of the Rules establishes a number of cases when an employee is entitled to full leave for an incomplete working year.

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

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

Rostrud confirms this conclusion.

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

Since paragraph 28 of the Rules does not state that 11 months of leave in the first working year only is entitled to full compensation, this provision applies to any working year in which the employee leaves. There is no jurisprudence that would refute such a conclusion.

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

Example

An employee is entitled to an annual paid leave of 28 calendar days. The next working year of the employee began on 04/01/2013. From 11/08/2013 to 11/21/2013 (14 calendar days) he used part of the paid vacation for this working year. Date of dismissal - 03/14/2014. There were no periods not included in the vacation period.
Vacation experience without time spent on vacation is exactly 11 months. Therefore, the employee acquired the right to full leave. Since 14 days of them have already been used, compensation should be paid for the remaining 14 calendar days.

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

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

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

In view of the foregoing, the number of vacation days to which an employee will be entitled upon dismissal with a vacation duration of 28 calendar days, depending on the vacation experience and the reason for dismissal, is equal to the following values ​​​​(see table below). Also on this issue, see the materials of the information block “Encyclopedia of solutions. Labor Relations, shots”, presented in the GARANT system.

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

Number of months of leave		Grounds for dismissal	The number of vacation days to which the employee is entitled upon dismissal
1		any	2.33
2		any	4.67
3		any	7
4		any	9.33
5		any	11.67
6			28
		others	14
7		for the reasons listed in para. 3 paragraph 28 of the Rules	28
		others	16.33
8		for the reasons listed in para. 3 paragraph 28 of the Rules	28
		others	18.67
9		for the reasons listed in para. 3 paragraph 28 of the Rules	28
		others	21
10		for the reasons listed in para. 3 paragraph 28 of the Rules	28
		others	23.33
11	Value is rounded up	for the reasons listed in para. 3 paragraph 28 of the Rules	28
		others	25,67
	Value is rounded down	any	28
12		any	28