Initial data
The employee worked for 4 years 10 months and 23 days. In the first 4 years he took all his vacation, but in the last year he did not. How should you calculate vacation compensation upon dismissal?
In this example, the accountant considered that the employee should be paid compensation in proportion to the time worked during the year. As a result, it was calculated that he was entitled to compensation for 25.67 days.
The employee does not agree with this. In his opinion, despite the fact that he did not finish the year, he should receive compensation for all 28 days of vacation allotted to him.
In whose favor is this dispute being resolved?
Compensation for unused vacation upon dismissal in 2021
We use the conditions of example 1. The billing period for determining the average daily earnings will be the period from November 1, 2020 to October 31, 2020. In the billing period, the person was on vacation from July 2 to July 29, 2020 (28 calendar days). The amount of payments taken into account in the calculation is equal to 920,000 rubles.
When accrued in accounting, the amount of compensation and insurance premiums from it are attributed to the reduction of the previously recognized vacation reserve (clause 21 of PBU 8/2010, approved by order of the Ministry of Finance dated December 13, 2010 No. 167n). Make the following entries:
Legal basis
The Labor Code does not provide a mechanism for calculating length of service, on the basis of which the employee’s right to compensation for unused vacation is determined. Therefore, you should be guided by a document called “Rules on regular and additional leaves” (hereinafter referred to as the Rules). It was adopted in the USSR (approved on April 30, 1930), but in accordance with Article 423 of the Labor Code of the Russian Federation, those provisions that do not contradict the Labor Code are still in force.
According to paragraph 28 of the Rules, if the employee did not use the right to leave, the employer must compensate for this with money. Moreover, regardless of the reason for dismissal, an employee who has worked for at least 11 months is entitled to full compensation. The same paragraph contains a list of reasons for dismissal, when the employee is entitled to be paid full compensation despite the fact that he worked from 5.5 to 11 months.
So, if an employee has worked for more than 11 months or has worked less but quits for certain reasons, he is entitled to full compensation. In other cases, it must be calculated proportionally.
Compensation for 11 Months of Work Upon Dismissal 2021
If an employee worked for a given employer for less than six months, upon dismissal he is paid monetary compensation for unused vacation at the rate of 2.33 calendar days of vacation for each full month of work (28 days).
Many people confuse one thing - to calculate compensation, they do not take calendar months (from the first to the thirtieth or thirty-first), but the months spent at work, that is, the first day will be the day of official employment and the start of work duties. For example, an employee was hired by the company on June 4, which means he will work a full month on July 3. Let's say an employee quit on June 14, which means he worked 10 days - that's less than half a month, and compensation for unused vacation will not be paid.
Calculation of work period
When calculating length of service in months, the following approach is used: the month is rounded up to a full month if the employee has worked more than half of it . This is defined in paragraph 35 of the Rules mentioned above.
Rostrud, in letter No. 14-1/B-1074 dated October 28, 2016, gives the following explanation: if an employee worked 10 months and 20 days in a year, then his length of service is rounded up to 11 months. Such an employee is entitled to full vacation compensation.
It would seem that we can put an end to this, but not everything is so simple.
Position of Rostrud
In its other letters (dated 03/04/2013 No. 164-6-1, dated 08/09/2011 No. 2368-6-1) Rostrud expresses the opinion that paragraph 28 of the Rules should be applied in a certain case. Namely, if the employee has been working in the organization for the first year .
It follows from this that if a person did not complete his vacation in the first year after employment and decided to quit, then his compensation should be calculated in accordance with paragraph 28 of the Rules. If we are talking about compensation for the second and subsequent years of work, then it must be calculated in proportion to the months worked .
However, paragraph 28 of the Rules does not say anything about the first year of work. There we are talking about 11 months, which are subject to counting towards the length of service, which affects the right to receive leave. At the same time, in accordance with Article 114 of the Labor Code of the Russian Federation, the employee is entitled to leave not only for the first year - it is annual. It turns out that the position of Rostrud is ambiguous.
Indeed, in 2014, Rostrud changed its opinion regarding the application of paragraph 28 of the Rules (Minutes of June 19, 2014 No. 2). Now officials believe that 11 months means the period of the working year , that is, the time for which vacation is granted, and not the total duration of work in an organization or for an individual entrepreneur.
If this norm is interpreted differently, Rostrud notes, then there will be unequal treatment of workers who have been working for the first year and those who have been working for a longer period of time. That is, the fact of discrimination is obvious. And in accordance with Article 2 of the Labor Code, discrimination in the sphere of labor is prohibited - this is one of the most important principles of legal regulation of labor relations.
At the same time, the employer is allowed to establish differences, exceptions and preferences, as well as limit the rights of employees if this is caused by the requirements of a particular type of work, the state’s concern for vulnerable segments of the population, and so on. But the case of calculating compensation for unused vacation does not fit within the framework of these restrictions or exceptions.
So, when calculating compensation for leave upon dismissal, the approach from paragraph 28 of the Rules should be applied to all employees , and not just to those who have been working for the first year.
Compensation for unused vacation upon dismissal, 11 months worked in 2021
If an employee quits, he must be given not only the rest of his salary, but also compensation for any unused rest days. We will tell you how to calculate and pay compensation for unused vacation upon dismissal in a year, taking into account the requirements of the Labor Code of the Russian Federation. The number of days of work amounting to less than half a month is not included in the calculation of length of service giving the right to compensation for unused vacation upon dismissal. This means that an employee who has worked for more than half a month has the right to compensation. This is confirmed by a letter from Rostrud from Now it is not always possible to plan a vacation in a way that is convenient for the employee and the company.
This document, widely known in narrow circles, has long been over 80 years old, but due to the lack of other regulations, it still has to be used. So, the Rules describe the algorithm for calculating compensation for employees who quit less than a year after being hired. Moreover, months, like years, are not calendar, but working. They should be counted not from the 1st day, but from the day of hiring or from the end of the previous month.
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Arbitrage practice
There are several decisions of courts of various instances that confirm the conclusions made above. Moreover, some of them were adopted even before Rostrud changed its opinion. Here are examples of such solutions:
- Ruling of the Sverdlovsk Regional Court dated July 14, 2009 in case No. 33-7241/2009.
- Appeal ruling of the Khabarovsk Regional Court dated November 1, 2013 in case No. 33-6763.
- Appeal ruling of the Altai Regional Court dated May 21, 2014 in case No. 33-4186/2014.
- Ruling of the Murmansk Regional Court dated June 24, 2015 No. 33-1833—2015.
How many days of compensation for unused vacation is due to an employee who has worked for 11 months?
If an employee worked in an organization for less than 11 months in a working year, then for this year he is entitled to proportional compensation (clause 35 of the Rules approved by the People's Commissar of the USSR on April 30, 1930 No. 169). That is, in this case, determine the number of unused vacation days in proportion to the time worked:
An employee who has worked for 11 months is entitled to compensation for unused vacation in full (for all unused vacation days). So, if the duration of an employee’s annual vacation is 28 calendar days, he worked for 11 months and did not use vacation, he is entitled to compensation for all 28 days.
Compensation for unused vacation upon dismissal in 2021
Compensation for unused vacation is not given to an employee if he has already been on vacation and has no unused rest days left. A special case of this rule is the provision of leave to a resigning employee at his request before terminating the contract in full. But this is only possible with the consent of management.
- payment of compensation if the reason for the employee’s dismissal was a deterioration in health;
- payment of compensation in case of dismissal of an employee at his own request;
- payment of compensation in case of dismissal of an employee as a result of agreement of the parties;
- payment of compensation in case of staff reduction at the enterprise itself.
Is it possible to leave early?
There are categories of people who can count on receiving rest regardless of the number of days worked. Among them are:
- minors;
- women who are expecting a child (it is possible to request leave before maternity leave);
- workers who have completed the adoption procedure for an infant under 3 months of age.
Other workers can exercise the right to rest only in accordance with the established procedure. After taking the first vacation, an employee in an organization goes to rest in accordance with the schedule. You can count on 28 days of paid period annually.
If you worked for 11 months, you will receive compensation upon dismissal for a whole year
An article of the Labor Code of the Russian Federation states: an employee has the right to compensation for unused vacation upon dismissal. On the last day of work he will receive the due payments. Every working person has 28 calendar days a year for rest. In the cases specified in the law, citizens are entitled to additional paid days, or bonus time for rest is provided by the employer himself in the collective agreement and local regulations. The part over 28 days can be replaced with a financial payment at the request of the employee. Let us immediately note that the working year is not equal to the calendar year; the countdown begins each time from the date of employment.
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If an employee decides to quit, then the employer is obliged to pay him upon dismissal compensation for unused vacation, Art. Of course, provided that the employee does not want to take off all unused vacation immediately before dismissal, he has such a right, if the dismissal is not related to the employee’s guilty actions. An online calculator will help you calculate compensation for unused vacation. Calculation of the number of calendar days of vacation for which compensation is due upon dismissal:. The number of calendar days of vacation due to an employee for a fully worked working year. The number of vacation days granted to the employee during the entire period of work in the organization. The dismissal compensation calculator makes calculations in several stages. First, the number of calendar days of unused vacation for which the employee is entitled to compensation is determined. Then the amount of compensation itself is calculated.
If 11 12, what is 11 12?
Like this. It turns out that with the traditional calculation procedure, the employee did not receive compensation for more than 2 days (28 days - 25.67 days). And that is not all. If you analyze the basis on which Rostrud specialists base their conclusions, you can make more interesting “discoveries.” These reasons are as follows: Petrov worked for the company for 2 months and 15 days. The third, not fully worked, working month began on October 12 and, if Petrov had not been fired, would have ended on November 11. This working month has 31 days, of which Petrov worked 15, that is, less than half. Therefore, Petrov’s vacation experience is also rounded up to 2 months and he is also entitled to compensation for 4.67 days of vacation (28 days / 12 months x 2 months).
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Compensation for unused vacation upon dismissal in 2021
Letter of Rostrud dated July 2, 2009 No. 1917-6-1 indicates that the payment is made regardless of the reason for dismissal. It is also necessary to pay money upon dismissal due to unsatisfactory results during the probationary period.
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