How to calculate compensation for unused leave upon dismissal? Do this in five steps at the time of termination of the employment relationship with the employee, but before the final settlement is paid. Let's consider the calculation of compensation for unused leave upon dismissal using specific examples.
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Draw up a note-calculationCompensation for unused leave upon dismissal of an employee is due to him for all the days of vacation that he earned, but did not have time to walk. Compensation is paid only in cash, in rubles. It is calculated according to the same rules as vacation pay - according to the average salary of a dismissed employee. In this case, not only regular vacation is taken into account, but also other paid vacation periods, including additional ones. They are required, for example, for employees under 18 years of age, persons working in special conditions or whose working time is not standardized.
To document the calculation of vacation compensation upon dismissal, draw up a calculation note. The completed example is shown in the window below and can be downloaded.
Who gets compensation for unused leave upon dismissal
Leave compensation upon dismissal is due to those employees who leave after having worked in this place for at least half a month. The payment is not dependent on the reason for the employee's departure. But individuals who are executors under GP contracts are not entitled to vacation compensation upon dismissal, since this right applies only to those who have an employment contract with an employer.
Example 1
NI Sokolov entered into an employment contract with LLC Symbol on July 12, 2018. Five days after that, he applied for dismissal from July 30, 2018. To determine whether to calculate vacation compensation upon dismissal, the Symbol's accountant determined, how many days in July 2018 fell on the time worked by Sokolov - is it 19 days. This means that the employee has worked more than half a month, and he is entitled to compensation for leave upon dismissal.
Calculate vacation compensation upon dismissal in five stages:
- Set the duration of the billing period.
- Determine the salary of the leaving employee for the billing period.
- Calculate his average daily earnings.
- Find the days of unused vacation.
- Determine the final amount of compensation.
Step 1. Period of calculating leave compensation upon dismissal
To determine the period, consider the total time a person has been in the company. With twelve months of work or more, the duration of the billing period is twelve calendar months that preceded the month of dismissal. When the term of employment is less than twelve months, take the time from the first day of employment until the last day of the month that preceded the month of leaving.
You can also fix a different billing period in a collective agreement or wage clause. But this indicator should not worsen the position of the employee.
Example 2
M.O.Abramov, who has been working in LLC "Symbol" since 2015 as a manager, resigns on 31.03.2018. He has the right to compensation for vacation. In March, 31 days were worked. That is, it is necessary to calculate the compensation taking into account this month.
Thus, the duration of the billing period is from 01.04.2017 to 31.03.2018.
Step 2. Earnings for calculating vacation compensation upon dismissal
Determine this indicator from earnings for the entire calculation period.
In the calculation include all payments listed in paragraph 2 of the provisions, approved. fast. Government No. 922 of December 24, 2007. In particular, these are remuneration and bonuses, compensation for harmful conditions, additional payments, allowances, etc.
But keep in mind that premiums need to be included in a special way. Take only bonuses provided by the wage system and accrued in the billing period.
Do not include payments for periods not included in the calculated one. These periods include:
- the time of payment of the average earnings, laid down in accordance with the Labor Code, for example, on a business trip or on vacation (except for a break for feeding a child);
- time on sick leave on maternity benefits;
- unpaid leave;
- additional paid days off by a disabled child and a disabled child;
- idle time through no fault of the dismissed employee;
- rest periods provided by law.
Also, do not take into account social payments and payments that are not related to wages when calculating. This includes material assistance, payment for food, travel education, training, housing, etc.
Example 3
Let's continue the second example and suppose that in the period from 01.04.2017 to 31.03.2018, the employee of "Symbol" M.O. Abramov received a salary in the amount of 40,000 rubles. and fell ill from September 11 to September 17, 2017, and was also on vacation from July 3 to July 30, 2017. When calculating compensation for dismissal for unused vacation, Symbol's accountant will not take into account sickness and vacation days, as well as the amount of sick leave and vacation pay for those days.
Step 3. Calculation of the average daily earnings
The procedure for calculating this indicator depends on whether the settlement period has been fully worked out or not, as well as the calculation of the duration of the vacation - in calendar days or working days.
For a fully worked out settlement period, calculate the average daily earnings as follows:
Example 4
Let's continue the third example and suppose that in the period from 01.04.2017 to 31.03.2018 M.O. Abramov, an employee of Symbol, with a salary of 40,000 rubles. I didn’t get sick and didn’t take leave.
The Symbol's accountant calculated the average daily salary to compensate for the leave upon dismissal and received the amount of 1,365.19 rubles. (40,000 rubles x 12 months / 12 / 29.3).
For a partially worked settlement period, calculate the average daily earnings using the formula:
Calculate the number of days in a partially worked period using the formula:
Example 5
Let's continue the third example, where the manager of "Symbol" MO Abramov with a salary of 40,000 rubles. was sick and went on vacation during the calculation period. The Symbol's accountant calculated the average daily salary to compensate for leave in case of dismissal in three stages:
- Number of days in the period:
- July 2017 - 2.84 days (29.3 days / 31 days x (31 days - 28 days);
- September 2017 - 22.46 days (29.3 days / 30 days x (30 days - 7 days);
- total - 318.30 days (29.3 days x 10 months + 2.84 days + 22.46 days).
- Salary for incomplete months:
- in July 2017 - 1904.76 rubles. (40,000 rubles / 21 days x 1 day);
- in September 2017 - 30,476.19 rubles. (40,000 rubles / 21 days x 16 days);
- total - 432 380.95 rubles. (40,000 rubles x 10 months + 1904.76 rubles + 30 476.19 rubles).
- The average salary to compensate for leave upon dismissal is 1,358.41 rubles. (432,380.95 rubles / 318.30 days).
Step 4. Days of unused vacation
To calculate compensation, count the days of unused leave when you leave. There is a corresponding formula for this:
Consider each year of a vacation that was not taken by an employee or partially taken. Note: we are talking here about the working year. Make a calculation for every twelve working months, starting from the date the person was hired.
However, do not include in this period:
- time away from work without good reason;
- parental leave for a child up to 3 years old;
- unpaid leave for more than 14 calendar days.
Please note: in some cases, the employee must be paid compensation as for the entire year of work, even if he worked for a shorter period. Do this when the person has worked for at least 10.5 months. After all, full compensation is due for 11 months.
Also pay the full annual amount of compensation for an actual work period of 5.5 to 11 months if the employee leaves due to:
- staff reductions;
- liquidation of the company;
- conscription;
- recognition on the basis of a medical conclusion incapable of work.
Apply the full compensation rules to all categories of employees who have completed 5.5 months or more of annual leave entitlement.
Step 5. Calculation of compensation upon dismissal for unused vacation
After finding the days of unused vacation, calculate the amount of compensation. Regardless of how you keep track of working time - in days or summed up, calculate the total amount of compensation using this formula:
Example 6
Let's continue the fifth example and suppose that the manager of "Symbol" MO Abramov did not take 18.64 days of vacation. This means that the vacation compensation upon dismissal is 23,320.76 rubles for him. (1358.41 rubles x 18.64 days).
Pay the employee compensation for the unused vacation at the time of final settlement. Accordingly, calculate the amount to be paid in advance. This will be helpful as it will fix bugs.
If there is an error in the calculation, the compensation will have to be recalculated. Pay extra for the understatement, and deduct the surplus from your salary. Please note that you can deduct no more than 20% from your salary.
Dismissal is always accompanied by the payment of wages for the fully worked time and compensation for the vacation due to the employee (Article 127 of the Labor Code of the Russian Federation).
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In this case, the legislation unambiguously dictates the timing of payments: on the day of dismissal, all settlements with the employee must be completed, except for cases when the employee did not go to work that day. Here the calculation is carried out on the next day after contacting the company.
Compensation must be paid regardless of the reason for dismissal: by agreement of the parties, by way of transfer, for absenteeism or of their own free will. They do not calculate this type of payment only if the vacation on the day of dismissal is fully used.
How to calculate vacation pay when you leave
The main condition for making the final calculation is the presence in the accounting department of an order from the personnel department of the enterprise to dismiss the employee. Depending on the reason for the termination of employment, the basis for creating an order is the employee's statement or the order of the manager.
The following information is obligatory for filling in the order:
- on the number of days of the next unused vacation;
- about unnecessarily used and subject to withholding vacation days;
- Articles of the Labor Code when issuing an order for dismissal - 114,121,127,137 require strict compliance with the requirements contained therein.
Vacation compensation video
The formula for calculating days and the amount of compensation
Vacation is provided annually to all employees of the enterprise (Article 114 of the Labor Code of the Russian Federation). For a fully worked year, paid leave is provided in the amount of 28 calendar days. This amount is considered calculated when calculating compensation payments.
If the employee did not use the next vacation, compensation is calculated for 28 days, if the period for which vacation pay is supposed to be calculated is less than a year, then the number of days of the due vacation is calculated proportionally.
Calculation of calendar days of the remainder of the vacation
For example: an employee has not used vacation for 6 months 18 days. Let's determine the number of paid days using the formula:
Number of days = 28: 12 ˟ 7 = 16.31 days, where
28 - the number of days of the next vacation per year,
12 - months of the year;
7 - the number of months of unused vacation.
To determine the number of months, use arithmetic rules for rounding days. More than half of the month in the example is rounded to the full, and vice versa, less than - is discarded.
Calculation of monetary compensation
It is carried out by calculation of the average salary for the last calendar year and the average daily earnings, which is determined by the formula:
Average daily earnings = OT annual: 12: 29.3,
OT annual - accrued wages for the last 12 months,
12 - number of months in a year,
29.3 is the average monthly number of calendar days accepted for official calculations.
Important! Until 04/02/2014 calculations were made from the amount of 29.4 days, the changes in the meter were recorded from Art. 139 of the Labor Code of the Russian Federation.
Not all payments are included in the salary for calculating compensation or vacation pay.
So, payments are not taken into account if the employee:
- worked with the preservation of average earnings (business trip, production necessity, etc.);
- received payments for sick leave due to illness or for pregnancy and childbirth;
- did not work for various reasons through no fault of their own. The accrual of compensation payments is calculated according to the formula:
Amount of compensation payments = average daily earnings ˟ number of vacation days.
If a resigning employee has no earnings
In this case, the reasons for the situation should be considered. If the last year the employee received an average monthly salary (this happens during long business trips, after maternity leave or parental leave), then the calculation is made from the salary, taking into account all types of accruals and bonuses accepted by the tariff agreement approved at the enterprise.
If wages were paid at the enterprise according to the so-called gray schemes, and were not documented, then there can be no question of an official calculation of the remainder of the vacation.
Overpaid compensation
You should be especially careful when calculating vacation pay with subsequent dismissal. Practice shows that it is in these cases that a large number of mistakes are made.
If an employee leaves before the expiration of the period for which he has already received vacation, then the company has the right to withhold the amount of excess accrued and paid vacation pay (Article 137 of the Labor Code of the Russian Federation).
But if the calculation of compensation by mistake of the company's personnel (personnel officer or accountant) is incorrectly made and this is subsequently found out, the perpetrators are subject to recovery.
Does the term of work matter
The period of time worked is also important:
- more than 11 months - the employee's compensation is calculated for every full 11 months.
- up to 1 month - the accrual of compensation payments will occur if the employee has worked for more than half a month. In this case, the days of unused vacation are accrued as for one full month.
- from 1 to 11 months. An employee who has worked for 11 months has the right to a full calculation of compensation. If the term of work varies from 1 to 11 months, a proportional calculation is made.
There are exceptions - according to the adopted Rules of 04/30/1930 N 169, employees who have worked from 5.5 to 11 months are charged compensation payments in full if the reasons for dismissal were:
- liquidation of an enterprise;
- entering military service;
- transfer to another job and in some other cases.
For unused additional vacation
Personnel managers and company executives usually discourage the desire of employees to ignore the next vacation, but sometimes it happens that unused vacations are collected over several years. The employer's statements that the right to previous leave has been lost are unfounded.
It is legally established that compensation must be paid for all unused vacations of absolutely all employees. It does not matter whether they work under a fixed-term employment contract, are on probation, or are external part-time workers.
For unused additional leave, established to the main by the accepted tariff agreements, in many companies, compensation is charged according to the general rule and is not divided into main and additional.
For example,
- if the company has established an additional vacation of 5 days for employees of certain positions, then the calculation period for compensation will be 33 days (28 + 5);
- if there was a vacation at your own expense within 14 days, then compensation is calculated based on the time worked + 14;
- If the leave without maintenance is more than 14 days, then compensation is calculated for a smaller number of days, since they are excluded from the calendar number of days of the month on which they fall.
Leave compensation upon dismissal in accounting
Taxation and accrual of insurance premiums, including personal income tax and FSS, for compensation payments occurs in the usual manner. Let's consider the reflection of transactions in accounting using example No. 1.
An employee, having worked for 9 full months from March 11 to December 16, 2013, quits. The salary is 17,000 rubles per month.
Number of vacation days = 28: 12 ˟ 9 = 21
Calculation period January - August, we will calculate the salary:
Period Payroll Amount
March 17000 / 20˟15 = 12750 12750
April-November 17000˟8 = 136000 136000
Total 148,750
Average daily earnings = 148750: (8 ˟ 29.3 + (29.3 / 31˟21) = 148750: (234.4 + 19.84) = 585.08 rubles
Compensation amount = 585.08 ˟ 21 = 12286.68 rubles
The salary for 11 working days in December was 17,000/22 * 11 = 8,500 rubles.
The following operations are reflected in accounting:
D-t 20 K-t 70 - 8500 rubles. payroll;
D-t 20 K-t 70 - 12286.68 rubles. accrual of compensation payments;
D-t 20 K-t 69.1 - 41.57 rubles. ((8500 + 12286.68) ˟ 0.2%)) accrual of contributions for occupational injury insurance;
D-t 20 K-t 69.1 - 602.81 rubles. ((8500 + 12286.68) ˟ 2.9%)) contributions to the FSS;
D-t 20 K-t 69.2 - 4573.07 rubles. ((8500 + 12286.68) ˟ 22%)) assessed contributions to the Pension Fund;
D-t 20 K-t 69.3 - 1060.12 rubles. ((8500 + 12286.68) ˟ 5.1%)) assessed contributions to FFOMS;
D-t 70 K-t 68 "Settlements for personal income tax" - 2702.27 rubles. ((8500 + 12286.68) * 13%)) personal income tax withheld;
D-t 70 K-t 50 - 18 084.41 rubles. ((8500 + 12286.68) ˟ 5.1%)) wages and compensation payments were issued from the cash desk.
The procedure for calculating compensation for unused vacation
Calculation example No. 2.
Employee Ivanov is leaving from March 25, 2019. The last time he was on vacation was from December 1 to 28, 2011, that is, the vacation has not been used for more than 2 years. The settlement year is from March 1, 2013 to February 28, 2019.
Let's determine the quantity:
- months of unused vacation for 2012 - 12 months, 2013 - 12 months, for 2019 - 2 months 25 days 26 months 25 days = 27 months;
- days of compensation due - 28: 12˟27 = 63 days
The salary from January 2012 to June 2013 was 18,000 rubles, from July - 20,000 rubles. Provided that no other payments taken into account in the calculation were made, applying the formula, we get:
How to calculate the number of vacation days upon dismissal? The question is relevant mainly for calculating compensation for unused rest. This article provides a step-by-step algorithm for calculating the duration of the vacation and the amount of its monetary compensation.
Eligibility for leave upon dismissal
Art. 127 of the Labor Code of the Russian Federation provides a resigning employee with an alternative: to take leave of unused vacation days during the period of work or to receive money for them. Moreover, if the payment of compensation is the duty of the employer, then the provision of leave "in kind" is his right. This is how the chh are formulated. 1 and 2 tbsp. 127 of the Labor Code of the Russian Federation.
Important! Dismissal of an employee for guilty actions excludes the possibility of granting leave, but does not relieve the employer of the obligation to compensate for it.
Since the amount of compensation directly depends on the length of the unused vacation, the need to calculate the number of vacation days before the employee's dismissal will arise if the employee does not use the vacation. The granting of leave with subsequent dismissal is carried out in full or in the part agreed upon by the employer and the employee, since the granting of annual leave in proportion to the hours worked by the Labor Code of the Russian Federation is not provided.
Calculating the number of days of unused vacation
By virtue of clause 28 of the Rules approved by the National Committee of the USSR dated 04/30/1930 No. 169 (hereinafter referred to as the Rules), the number of unused vacation days is the product of the duration of the actually worked hours in months and the duration of the prescribed vacation, divided by 12 - a number equal to the number of months in a year ...
That is, the calculation formula is as follows:
Ku = (Mo × Do) / 12,
where: Ku is the number of vacation days accumulated and not used by the time of dismissal;
Mo is the number of months worked (for the first year of work - total, starting from the second - in the year corresponding to dismissal);
Until - the duration of the annual paid vacation in days;
12 - the number of months in a year.
Important! The time worked should be excluded from the time that is not counted in the vacation experience (part 2 of article 121 of the Labor Code of the Russian Federation).
According to Part 1 of Art. 115 of the Labor Code of the Russian Federation, annual leave lasts at least 28 days (for more details on the duration of vacations, see the article Duration of annual basic paid leave). In this regard, a classic example of calculating vacation days upon dismissal is as follows:
Mo = 9 months.
Until = 28 days.
Ku = (9 × 28) / 12 = 21 days.
The above formula is widely used by the courts when considering disputes about the amount of compensation for vacation (see, for example, the appellate rulings of the Moscow Regional Court dated 23.08.2012 No. 33-13622, the St. Petersburg City Court dated 13.02.2014 No. 33-2064 / 14).
If you have worked less than a month
In order to calculate the days of unused vacation, it is not the calendar month that should be taken into account, but the actually worked worker starting from the date of employment. This provision follows directly from the content of Art. 14 of the Labor Code of the Russian Federation, according to which the calculation of the terms associated with the emergence of labor rights and obligations begins from the date from which the beginning of their emergence is determined.
But the period of work of an employee in an organization is rarely the full number of months. For example, employment took place on January 14, and the dismissal is scheduled for November 19. That is, the employee worked for 10 months and 5 days. Should the 5-day remainder be taken into account when calculating the length of the vacation?
Clause 35 of the Rules prescribes excluding surpluses that are less than half a month from the calculation base, while surpluses exceeding half a month, on the contrary, should be taken into account. The same position was stated by Rostrud in letters dated 08.06.2007 No. 1920-6, dated 31.12.2008 No. 5921-TZ, dated 18.12.2012 No. 15-19-6-1.
Important! The determination of the duration of the unused additional paid vacation is carried out according to the same rules with the only exception: only the days actually worked are taken into account (part 2 of article 121 of the Labor Code of the Russian Federation).
- Additional vacation for irregular working hours - duration and procedure for granting;
Calculation of the remainder of the vacation, if part of it is used
Example
In the year corresponding to the dismissal, the employee worked 10 months 17 days, while taking 10 days of vacation out of the 28 prescribed. The surplus of 17 days is more than half a month and therefore counts for a full month. The balance calculation will look like this:
- (11 × 28) / 12 = 25.67 - the total number of vacation days due in the last working year;
- 25.67 - 10 = 15.67 - the number of vacation days given to the employee at the time of dismissal.
Important! A situation is possible when, as a result of calculating the remainder of the vacation, a negative number is obtained. For example, if an employee rested 15 days, and worked only 4 months in the current year, it turns out that he owes the employer 5 days.
In this case, you cannot force the employee to work out the missing period, but you can deduct from his salary vacation pay paid for 5 days of vacation, but not worked.
Note! The retention must be carried out in compliance with Part 2 of Art. 137 of the Labor Code of the Russian Federation and subject to the restrictions established by Art. 138 of the Labor Code of the Russian Federation.
How to calculate compensation for unused vacation
To determine the amount of monetary compensation for a leave of absence by a quitting employee, 2 indicators are needed:
- the number of unused vacation days;
- average employee earnings for 1 day.
The calculation formula will look like this:
Pk = Kd × Zd,
where: Рк - amount of compensation;
Kd is the number of days of unused vacation;
Zd - the employee's average earnings per day.
Determining the size of the average daily earnings
The calculation procedure here depends on the holiday unit. It can be calculated:
- In calendar days - according to the general rule established by Art. 120 of the Labor Code of the Russian Federation.
- In working days - for some categories of employees:
- working under a temporary labor contract concluded for a period of up to 2 months;
- seasonal workers.
If the vacation is calculated in calendar days
The procedure for determining the average daily earnings for the payment of compensation for vacation provided in calendar days is established by Part 2 of Art. 139 of the Labor Code of the Russian Federation and clause 10 of the regulation approved by the Decree of the Government of the Russian Federation of 12.24.2007 No. 922 (hereinafter - regulation No. 922).
The formula is as follows:
Zd = Zp / 12 / 29.3,
Зп - actually accrued salary for 12 calendar months preceding dismissal;
12 - the number of months in a year;
29.3 is the average number of days in a month.
Calculation example
Dismissal date - 01.12.2017.
Salary for the billing period from 12/01/2016 to 11/30/2017 - 420,000 rubles.
420,000 / 12 = 35,000 rubles. - the amount of earnings per month.
35,000 / 29.3 = 1,194.54 - average daily earnings.
If vacation is calculated in working days
According to Part 3 of Art. 139 of the Labor Code of the Russian Federation and clause 11 of Regulation No. 922 in order to determine the amount of compensation for vacation in terms of its calculation in working days, the average daily earnings are calculated according to the following formula:
Zd = Zf / RD 6,
where: Zd - average daily earnings;
Зф - actually accrued salary;
RD 6 - the number of working days according to the calendar of a 6-day working week.
Calculation example
The period of work is from 01.10.2017 to 01.12.2017.
Salary for October - 60,000 rubles.
Salary for November - 58,000 rubles.
The number of working days is 51.
60,000 + 58,000 = 118,000 rubles. - salary for the entire period of work.
118,000 / 51 = 2,313.73 rubles. - average daily earnings.
Rules for rounding the number of vacation days to an integer
A calculation using the above formula almost never results in an integer. For example, if an employee managed to work 8 months before dismissal, the number of unused vacation days will be 12.67. The legislator does not say anything about rounding off the number of vacation days to an integer, however, the employer still has such an opportunity (see, for example, the letter of the Ministry of Health and Social Development dated 07.12.2005 No. 4334-17).
Note! If this opportunity is used, the question of how to count the vacation days upon dismissal, while receiving an integer number, should be resolved in accordance with the same letter from the Ministry of Health and Social Development. According to the document, arithmetic rules do not apply in this case: rounding is always carried out in favor of the employee, that is, upward.
For example, with 4 months worked, the duration of the prescribed vacation will be 9.3 days. In such a situation, the employee must be compensated for 10 days of rest or vacation pay for the same 10 days must be calculated.
Important! The rounding off of vacation days upon dismissal affects the amount of vacation pay or vacation compensation, but not the duration of the actually granted vacation (see Rostrud letter dated 12.24.2007 No. 5277-6-1).
Calculation of compensation: exceptions to the rule
There are situations when it is not necessary to calculate the number of vacation days based on the actual hours worked. So, according to part 2 of paragraph 28 of the Rules, compensation for leave for a full working year is due to employees who worked 11 months or more before dismissal. The same, by virtue of part 3 of clause 28 of the Rules, applies to employees whose work experience in the last place was from 5.5 to 11 months, provided that they leave for one of the following reasons:
- upon liquidation of the employing organization;
- reduction in the number of employees;
- conscription for military service.
Important! Rostrud in letters dated 09.08.2011 No. 2368-6-1 and dated 04.03.2013 No. 164-6-1 drew the attention of employers to the fact that these norms apply exclusively to employees who have worked part-time. That is, starting from the second working year, the number of days of unused vacation is calculated according to the general rules - based on the hours actually worked.
So, the duration of unused vacation is calculated in days, the number of which is directly proportional to the time actually worked. At the same time, periods that, according to the law, are not subject to offset in the vacation period are excluded from the basis for the calculation.
A resigning employee is entitled to monetary compensation for unused vacation. Moreover, compensation is paid for vacations accumulated over 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,
Expert of the Legal Consulting Service 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 employee's average daily earnings. In turn, the number of days of unused vacation 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.
Determination of the number of vacation days earned at the time of dismissal
The proportion in this case should look like this:
M 0: 12 = K y: K 0,
where
Mo is the number of months worked by the employee;
12 - the number of months in a year;
Ku is the number of vacation days to which the employee was entitled by the time of dismissal;
To - the number of days of the employee's annual paid leave.
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 is also used by the courts when calculating the number of days of unused vacation.
Example
The duration of the employee's vacation is 28 days. The employee leaves at his own request, having worked in the current working year for 8 months. 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 an employee was entitled to at the time of dismissal. This position is based on the explanations of Rostrud, according to which each month worked by the employee entitles him to 2.33 (28 days: 12 months) vacation days (with a vacation duration of 28 days). In turn, the total value of the number of vacation days earned by the employee is determined by multiplying this value by the number of months of vacation period.
Thus, in essence, Rostrud proposes to break the above formula into two separate arithmetic operations:
- divide the number of vacation days by 12;
- multiply the resulting value by the number of months the employee worked.
However, this approach seems to the author to contradict common sense and lead to deliberately distorted calculation results. The fact is that the value obtained as a result of dividing 28 by 12 is an infinite decimal fraction 2, (3), and the number 2.33 is obtained as a 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, deteriorating his position.
The use of this calculation procedure leads to the emergence of obviously absurd situations.
Example
The duration of the employee's vacation is 28 days. An employee quits of his own free will, having worked 6 months in the current working year. It seems obvious that, having worked exactly half the working year, the employee is entitled to exactly half of his vacation, that is, 14 days. However, if the Rostrud calculation method is applied, a slightly different value is obtained:
2.33 days. x 6 months = 13.98 days.
At the same time, the application of Rostrud's methodology is reflected in judicial practice.
However, even if the employer considers it acceptable to use the specified approach to calculating the number of vacation days earned by the employee, please note that it is impossible for all employees, without exception, to determine the number of vacation days due on the basis of 2.33 calendar days of vacation for each month of service. 2.33 days of vacation per month of seniority are entitled only to those employees whose annual paid vacation is 28 calendar days. If the full vacation is more than 28 days, then the number of vacation days per month of work 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 per month of leave (56 days: 12 months).
It should also be noted that the current legislation does not provide for the possibility of rounding the resulting number of vacation days. The letter from the Ministry of Health and Social Development of Russia noted that it is possible to round the number of days of vacation earned, including to whole numbers, but not according to the rules of arithmetic, but in favor of the employee. However, this approach is only valid for those cases where rounding is the employer's desire and is performed, for example, in order to facilitate further calculations. If rounding is an objective necessity, then the employer is obviously forced to make it regardless of the fact that the procedure for such an action is not regulated by law. In the author's opinion, in this case, generally accepted arithmetic principles of rounding can be used.
Example
The duration of the employee's vacation is 28 days. An employee quits after 1 month of leave. The number of days of vacation he earned in this case will be the result of dividing 28 by 12, that is, 2, (3). However, the employer cannot use the periodic fraction in further calculations, and therefore he is forced to resort to rounding the value obtained. In this case, in accordance with the established practice, rounding is performed to the nearest hundredths. That is, the result will be 2.33 days. If the employer wants to round the resulting 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 value for further calculations is not necessary, rounding off the number 2, (3) in this case would have to be up, that is, up to 2.34.
Determination of the number of months of the employee's vacation experience
Separately, it is necessary to mention the specifics of determining the number of months of leave work of an employee. When calculating the terms of work that give the right to leave, surpluses of less than half a month are excluded from the calculation, and surpluses over half a month are rounded up to a full month. It does not specify what is meant by half a month. Nevertheless, from the examples given in the Rules, we can conclude that for half a month when calculating the experience, 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 this clause deals with working months, not calendar months and, accordingly, exactly those surpluses that remain after determining the number of full working months are subject to rounding.
Example
The employee was hired on April 14, and dismissed on May 16, 2014. In this case, his length of service, which gives the right to vacation, is 1 month and 3 days. A surplus of less than half a month is not taken into account in further calculations. Thus, the employee's vacation experience 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.
So, employees who are dismissed for whatever reason, who have worked for the employer for at least 11 months, subject to offset in the period of work that gives the right to leave, receive compensation for a full vacation.
This legal norm is subject to application insofar as it does not contradict. After all, the annual paid vacation is included in the vacation experience and is provided as a general rule during the working year for which it is supposed. In other words, 11 months of work experience, which gives the right to vacation, is always enough to make a full working year together with a full vacation.
Rostrud confirms this conclusion.
The courts also recognize the right of employees to compensation for a full vacation with at least 11 months of service.
Since paragraph 28 of the Rules does not say that 11 months of vacation time only in the first working year are eligible for full compensation, this provision applies to any working year in which an employee leaves. No judicial practice has been found that would refute this conclusion.
The question arises whether employees are entitled to full leave if their length of service is 11 months only as a result of rounding. For example, an employee has worked 10 months and 18 days in the current working year. On the basis of clause 35 of the Rules, the surplus of 18 days is rounded up to a full month, the vacation period is equal to 11 months. Nevertheless, the author believes that the employee actually worked for less than 11 months and does not have the right to full leave on the basis of paragraph 28 of the Rules. He is entitled to compensation for 11/12 of a full vacation.
Obviously, full compensation is due to the employee who has not yet taken leave for the corresponding working year. Consequently, the 11 months of experience giving the right to full leave should not include the time spent on the vacation itself, about the right to which it is in question.
Example
An employee is entitled to an annual paid leave of 28 calendar days. The employee's next working year began on 01.04.2013. From 11/08/2013 to 11/21/2013 (14 calendar days), he used part of the paid leave for this working year. Dismissal date - 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 has 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 as a result of the liquidation of an enterprise or institution or its individual parts, reduction of staff or work, admission to 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 had worked from 5.5 to 11 months.
However, there are judicial acts with 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 enshrines 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 experts indicate that the procedure for paying full and proportional compensation for up to 11 months of service 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 paragraph 28 of the Rules, regardless of how long they have been working for this employer, if in the current their work experience 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 Rules 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 generally do not have a separate legal regulation of the issues of payment of compensation for unused vacation to employees who have been working for the employer for more than a year. Therefore, the choice between full and proportional compensation should not depend on the working year in which the employee leaves. A different interpretation violates the principle of equality of rights and opportunities for workers, enshrined in the principle, since, with the same length of service in the current working year, it makes it possible to compensate for a different number of vacation days for that year. Similar conclusions can be found in judicial practice.
Taking into account the foregoing, the number of vacation days to which an employee will be entitled upon dismissal with the duration of his leave of 28 calendar days, depending on the vacation record and the grounds 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, personnel ”presented in the GARANT system.
The number of vacation days to which the employee is entitled upon dismissal, depending on the vacation experience (with a vacation duration of 28 calendar days).
| Number of months of vacation experience | Grounds for dismissal | The number of vacation days an employee is entitled to 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 par. 3 paragraph 28 of the Rules | 28 | |
| others | 16.33 | ||
| 8 | for the reasons listed in par. 3 paragraph 28 of the Rules | 28 | |
| others | 18.67 | ||
| 9 | for the reasons listed in par. 3 paragraph 28 of the Rules | 28 | |
| others | 21 | ||
| 10 | for the reasons listed in par. 3 paragraph 28 of the Rules | 28 | |
| others | 23.33 | ||
| 11 | The value is obtained as a result of rounding up. | for the reasons listed in par. 3 paragraph 28 of the Rules | 28 |
| others | 25,67 | ||
| The value is obtained as a result of rounding down. | any | 28 | |
| 12 | any | 28 | |
Very often, accounting and HR workers are faced with the question of how to calculate the unused vacation days assigned to employees. Also, the employees themselves sometimes want to know how many vacation days they are entitled to on any date. How to correctly calculate these days without deceiving either the employee or the employer? Below you will find the answer to this question, we will look at examples of various situations that arise in the course of work.
Work experience, giving the right to annual paid leave
In order to send an employee on vacation and, you need to know the number of days of vacation. And for this, you first need to calculate the employee's vacation experience, that is, the period of work that gives the right to annual paid vacation. Article 121 of the Labor Code of the Russian Federation discloses in detail which periods should be taken into account when calculating the length of service, and which should be excluded.
The length of service that gives the right to leave includes:
- actual work time;
- the time when the employee did not actually work, but his place of work was retained;
- time of forced absence through no fault of the employee;
- the time of suspension from work due to failure to undergo a medical examination through no fault of the employee;
- unpaid leave provided to an employee at his request, within 14 days.
The length of service that gives the right to leave does not include:
- time away from the workplace without a valid reason;
- Holiday to care for the child;
- unpaid leave provided to an employee at his request, over 14 days.
As a rule, annual paid leave is granted in the amount of 28 days per working year - this is the main paid leave. In some cases, additional paid leave is added to the main vacation. It is provided for some categories of workers specified in the Labor Code of the Russian Federation, details of additional paid leave can be found in the article: ““.
An employee has the right to take leave after 6 months of work. If an employee has worked the full 11 months, then he is entitled to 28 days of basic leave.
When calculating the vacation period, the periods that are not taken into account are deducted from the worked period, the resulting period is expressed in full months. An incomplete month is rounded up to one month if more than half of the days in that month have been worked. If less than half has been worked out, then this incomplete month is not taken into account. For example, if work experience is 10 months 10 days, then 10 days will not be counted. And if worked 10 months 20 days, then the total work experience will be 11 months.
Formula for calculating unused vacation days
After the length of service is determined, which gives the right to leave, you can calculate the number of vacation days due according to this length of service. To do this, you need to use the following formula:
Examples of calculating unused vacation
#1. If the employee was on vacation without pay
According to the Labor Code of the Russian Federation, only 14 days of leave without pay are included in the length of service. Ivanov rested for 20 days without maintenance, which means 6 days will need to be excluded from his experience. The main vacation time does not need to be excluded from the seniority.
1. Vacation period calculation
From 08/10/2011 to 08/09/2012 12 full months were worked.
From 08/10/2012 to 04/22/2013 8 months 12 days were worked.
We exclude 6 days of leave without pay.
Total experience = 12 months. + 8 months 12 days - 6 days = 20 months 6 days.
We do not take into account 6 days, since less than half a month has been worked out. This means that the final vacation experience is 20 months.
2. The formula for calculating the days of unused vacation
Days of unused vacation = 28/12 * 20 - 28 = 18.67 days.
# 2. If the employee was on parental leave
1. Vacation period calculation
The length of service will be calculated from 01.03.2010 to 21.04.2013.
Parental leave should be excluded from the length of service that entitles you to leave.
In total, in the period from 01.03.2010 to 21.04.2013 - 37 months and 21 days.
We exclude the period from 10.10.2010 to 20.06.2012, that is, 19 months and 10 days.
Total vacation experience = 18 months and 11 days. We do not take 11 days into account, we get 18 full months of experience.
2. Unused vacation days. Calculation formula
28/12 * 18 = 42 days of vacation is due to Petrova.
# 3. If an employee leaves without having worked for 11 months
Vacation experience: from 08/01/2012 to 03/31/2013 - this is a full 8 months, plus 7 days in July and 22 days in April, for a total of 8 months 29 days, round up to 9 full months. Sick leave days do not need to be excluded from work experience.
Vacation days = 28/12 * 9 = 21 days.
#4. Calculation of unused vacation days upon dismissal
In this case, at the end of the vacation, it is necessary to make a settlement with the employee, including paying compensation for unused vacation. Here we must not forget that the period when the employee was on the last vacation before dismissal must also be included in the vacation experience, since the time of the main vacation is included in the length of service, which gives the right to paid vacation.
The article discusses the main points regarding the vacation experience and the calculation of the days of unused vacation. If you still have any questions regarding this topic, you can ask them below.
