Vacation pay upon dismissal of one's own free will: is compensation paid for unused rest days by the employee, for time off, how to calculate payments?

general information

Is it possible to resign during vacation at your own request?

Yes, you can.

An employer can fire an employee while on vacation only in the following cases:

liquidation of the organization;
termination of IP;

The desire of the employee himself is necessary.

If he expresses it by writing a statement, then there are no other restrictions on dismissal during the vacation period.

Dismissal after vacation: work report not received on time

What to do if a person’s last working day falls on a weekend or holiday. Perhaps the employee was not at work that day, was on a business trip and was not able to receive documents and payment. Since it is impossible to issue a work permit before the due date, the issuance of documents and money must be carried out on the first working day after the weekend, holiday or the last working day of the resigning employee. Although in this situation the person is already on vacation. To do this, a notification letter should be sent to the employee with a request to come and receive the labor and payment at the place of work or agree on the possibility of sending the labor by post (if the payment is transferred to a bank account). This notice will serve as the basis for removing responsibility from the employer for failure to comply with the deadlines for handing over the work book. Upon written request, the dismissed employee should be issued a work permit within three working days.

Options

How to quit? While on vacation, you can resign using one of the options:

Vacation followed by dismissal.
Writing a letter of resignation while on vacation, at your own request.

In the first case, the employee does not want to leave the organization immediately, but only after taking a vacation before leaving . The work book is issued before the start of the vacation period.

Money is also paid in advance. The employee takes the required rest and simply does not go to work. But you need to remember that the employer is not obliged to follow the employee’s lead and can refuse leave with subsequent dismissal .

We recommend you the following articles regarding leave followed by dismissal: “Recommendations for registration”, “Rules for writing an application for leave”.

The second option, regardless of the employer’s wishes, obliges him to formalize the dismissal . Is it possible to write a letter of resignation while on vacation? A vacationer does not have to go to work for at least one day to write an application , as many mistakenly read. That is, the feedback that management usually insists on is not necessary.

The employer can be understood. A statement written while on vacation is an obstacle to the notorious “working off.” It will not be possible to drag an employee into the office to complete his work, submit documents, or train another person. The person who writes the application calmly waits for the deadline for the notice to expire and picks up the documents without worrying about unfinished work .

But it is not legal to insist on a review:

There is no production factor.
The vacationer's consent is missing.

This video details the first option, “Vacation followed by dismissal.” What should you pay attention to and what should you be wary of? Recommended viewing:

Termination of the employment contract at one's own request at this point in time

Labor legislation adheres to a policy of free labor, prohibiting forced labor (Article 4 of the Labor Code of the Russian Federation) and allowing you to resign at your own request (Article 80 of the Labor Code of the Russian Federation) at any time, be it during work, sick leave or vacation: you can write a statement at any time point in time when the employee himself decides.

Termination of an employment contract before or during a vacation allows an employee to avoid working off:

at 2 weeks – as a general rule;
1 month – for directors of organizations, athletes and coaches;
at 3 days – for interns and employees working under a temporary contract.

Dismissal on the last day of vacation will not relieve the employee of this obligation. Legislatively, there is no such thing as working off: the employee is only obliged to notify the employer in advance (14 days or another period specified above) of his desire to leave, continuing the work process as usual. This period is informally called working off.

Until the end of this period, the employee has the right to withdraw the application and continue working.

Since in accordance with Art. 14 of the Labor Code of the Russian Federation, the deadlines associated with termination of the contract begin to run the next day after the grounds arise (in this case, this is the employee’s statement).

Important! If the desire to leave work appears at the end of the vacation, the employee will have to return to his duties for the duration of his work.

Therefore, the employee will receive at the exit:

salary worked during this time;
compensation for 2.33 unused days of the next vacation (since the vacation itself, from which the employee leaves, is included in the length of service).

Procedure

Such termination of an employment contract is carried out according to general rules.

Submitting a resignation letter to management.

It is drawn up in writing and contains:

in the header - the name and position of the head of the organization in whose name the application is being submitted;
in the main part - a request to dismiss at your own request with reference to clause 3, part 1, art. 77 Labor Code of the Russian Federation;
date and signature of the employee with transcript.

The employee is required to select the application submission method:

in person, coming to work on the last day of vacation;
by registered mail;
by email (the employee must have an electronic signature).

Workout.

It has already been said above that the employee will have to work the required period if he does not have valid reasons specified in Part 3 of Art.
80 of the Labor Code of the Russian Federation (for example, he resigns due to retirement), or if he cannot agree on this with management, in accordance with Part 2 of Art. 80 Labor Code of the Russian Federation. During work, the employee completes all remaining tasks. For example, employees with full financial responsibility will be required to transfer affairs after management conducts an inventory.

Preparation of dismissal orders and personnel documents.

Any changes in the state are recorded by local regulations. When terminating an employment contract with an employee or upon its termination (in cases where neither party initiates the dismissal), the head of the organization issues an Order (using the unified form T-8 or using company letterhead), which contains:

a link to the contract being terminated;
employee information;
the reason for dismissal with reference to the norm of the Labor Code of the Russian Federation (in this case - clause 3, part 1, article 77).

The dismissed person must familiarize himself with this document with his signature.

On the last working day, the HR specialist:

draws up a work book and personal card of the employee, entering information about dismissal;
prepares other documents (certificate of income, information on insurance premiums, 2NDFL).

The work book with a package of documents is handed over to the person being dismissed, for which he signs on his personal card, which remains in the organization’s archives.

Settlement with an employee.

In accordance with Art. 140 of the Labor Code of the Russian Federation, it includes the employee’s salary, proportional to the days worked. Vacation compensation is controversial because the employee has just returned.

Reference. Since the vacation itself is included in the length of service, and the 2.33 days of vacation established by law are accrued after 15 days worked, the dismissed person will receive a certain amount of compensation.

However, if his previous leave was served in advance, 20% may be collected from the employee’s salary as compensation to the organization.

Rest followed by termination of the employment contract

We may also be talking about another situation when an employee applies for leave with subsequent dismissal. According to all personnel documents, termination of the employment contract will occur on the last day of rest, despite the fact that the last working day will be considered the day before going on vacation.

So, Derbanova E.M. submitted an application for leave with subsequent dismissal on 08/01/2019.

This vacation was not a regular one for her (she was supposed to be sent on vacation at the end of August according to the schedule), but the manager agreed to meet the employee halfway and give her the opportunity to go on vacation.

Derbanova’s last working day, in accordance with her application and two-week work, was 08/15/2019, and on August 16 she was listed as on vacation. The last day of rest is indicated as 09/16/2019, this date will be indicated as the day of termination of the employment contract.

On the last working day (the day before vacation), the employee is given:

work book and other documents;
calculation, which includes wage balances (calculation note in form T-61) and vacation pay (calculation note in form T-60).

If Derbanova’s vacation had come in the order of priority on August 16, and she had submitted an application before going on vacation, she would not have had to work 2 weeks.

Termination of contract during holiday

An employee can be fired on the last day of vacation and in one more situation: when submitting an application during vacation.

Let's say Ivanov L.D. went on vacation for 28 days. He decided not to return from vacation, and 2 weeks before the end of the vacation he handed over to the organization a letter of resignation of his own free will.

In a situation like this:

the last day of vacation, the last working day and the day of termination of the contract will coincide;
the employee must come to work on this day to obtain a work book or agree to have the documents sent by registered mail;
as a settlement, he will be paid the remaining salary and compensation for the accrued 2.33 unused days of the next vacation.

Procedure and deadlines for submitting an application

Art. 80 of the Labor Code of the Russian Federation obliges the employee to warn his employer about the upcoming dismissal two weeks in advance.

Moreover, the form of the warning must be in writing .

Otherwise, the employer can pretend that he did not see, hear, or even know that the employee planned to sever the employment relationship with him.

To avoid trouble, it is necessary not only to write a statement, but also to obtain guarantees that the employer has definitely received it.

There are two ways:

Come in person and register an application for resignation during a vacation of your own free will, as incoming documentation, and be sure to get an office stamp on the copy with the number and date of registration, thereby depriving the employer of the opportunity to “lose the application.”
Send a letter . Simply dropping it in the mailbox is not enough. In this case, the sender will have no evidence in his hands that he actually sent the application. The letter must be registered, it is advisable to use an inventory. In which case, proof of the employee’s will to resign will be considered a postal receipt, which indicates the date, time, addressee and an inventory of the contents of the letter.

Alternatively, the employee can send the document through the principal.

It must be remembered that, if the employee wishes, the application is withdrawn and the dismissal is cancelled.

What to do if they don't pay?

If the compensation due to the employee is not paid by the employer on time, then the employee may resort to such types of protection of his own rights as:

Send a written request to the employer to reimburse vacation pay. As a rule, this method rarely works. If the employer is dishonest and has not paid the required compensation on time, then it is unlikely that such treatment will affect him.
Contact the labor inspectorate with a statement outlining the violation committed by the employer. Having received the application, the inspector will conduct an inspection, on the basis of which an order will be drawn up to pay compensation to the employee. The Labor Inspectorate will ensure that this order is followed.
Contact the prosecutor's office with a statement also containing the essence of the employer's violation.
Apply to the court with a statement of claim, which will set out the employer’s violations and the requirements against him.

When contacting any of the above-mentioned authorities, you will need to present your passport and an employment contract concluded with an employer who is violating the terms of payment of compensation. It will also be necessary to draw up a corresponding statement describing the violations of the employer and the requirements for him.

If an employer does not pay compensation for vacation, the labor inspectorate may hold him accountable and impose a fine on him.

An employee who was not transferred this amount within the period established by law is entitled to compensation for delayed labor payments in accordance with Art. 236 Labor Code of the Russian Federation.

Thus, upon dismissal, the employee is required to pay compensation for unused vacation on the day of termination of the employment relationship. Currently, there are many calculators on the Internet that allow you to quickly and correctly calculate the amount of compensation, taking into account all the rules. If the employer does not fulfill his obligation to make this payment, then the employee must contact human rights authorities.

About refusal

An employer does not have the legal right to refuse to accept a resignation letter from an employee , even if he is on vacation or sick leave. The person wanted to leave and after the required 14 days, no one and nothing could keep him at work.

If the employer resists, then it is worth reminding him of the labor code, which guarantees everyone the opportunity to formalize the severance of business relations .

Determining the Difference

When thinking about benefits, you should remember that every employee needs rest. Therefore, taking leave is always preferable to receiving compensation.

According to the Labor Code of the Russian Federation, each employee has the right to take annual paid leave of 28 calendar days. Vacation is calculated using the formula 28:12 = 2.33 vacation days. An employee can go on vacation after 11 months of work, and while on vacation, he earns another 2.33 vacation days. It turns out that after working for 11 months, an employee receives the right to rest for a 12-month period of work.

If a working colleague decided upon dismissal to limit himself only to compensation for unprovided rest, having worked for a whole calendar year, then he has the right only to calculate the payment based on 28 days, nothing more. In this case, 2.33 days are lost.

If we are talking about which is more - vacation pay or compensation for unused vacation, it is worth remembering the loss of 2.33 days of annual leave when choosing compensation. For example, if an employee worked at an enterprise for 3 years without rest, and his salary was 60,000 rubles, then for the entire period he lost 15,000 rubles.

Without going on vacation

The option concerns an employee who has not taken a single vacation day for 3 years. The salary was 60,000 rubles. The calculation was:

60,000 * 36 = 2,160,000 rub.
Upon dismissal, compensation is due for 28 * 3 = 84 days.
60,000: 28 x 84 = 180,000 rub.
Calculation of total earnings for 36 months. is: 2160000 + 180000.00 = 2340000 rub.

So, the average monthly salary will be 2,340,000: 36 = 65,000 rubles.

Happy annual holiday

The calculation of the second option provides for the moment when the employee annually took his allotted rest. The vacation was 28 calendar days. They must be subtracted from the number of months that have already been worked, since these days were weekends. So it turns out:

36−3 = 33 months
During these months, 60,000 rubles were received. * 33 = 1,980,000 rub.
Compensation for 3 months will be 60,000 * 3 = 180,000 rubles.
The total amount of funds earned for 33 months will be as follows: 1,980,000 + 180,000 = 2,160,000 rubles.

The amount of average monthly earnings will be 2,160,000: 33 = 65,454.55. The difference between these two calculation options is:

(65454.55 - 65000) = 454.55 * 11 * 3 = 15,000 rubles.

According to the examples given, one can clearly assume that upon dismissal it is still better to take out the rest of the leave than to receive compensation.

The employee must understand that he can use this right only with the permission of the head of the enterprise. If the employer refuses in this matter, you will have to agree to compensation.

Is work required?

There is no such thing as working off.

There is a fact of warning of intentions expressed in the form of a statement. The next day the two week countdown begins.

On the 14th day comes the date of dismissal . This period is set so that the employer has time to replace the departing employee with a new one.

If the actual vacation is longer than the notice period, subject to mutual agreement, the date of dismissal can be postponed to the end of the vacation. But the start of “working off” is never postponed, which is very beneficial for the employee.

During the warning period, he takes vacations and does not sit at work. And even if he has outstanding obligations to the employer, the dismissal will still take place .

By agreement of the parties

On the last day of vacation, an employee can be dismissed by agreement with the employer (Article 78 of the Labor Code of the Russian Federation).

Unlike leaving voluntarily, such dismissal can be done in one day . That is, on the last day of vacation, the employee and the employer sign an agreement that includes the terms of dismissal, payments, etc., and the next day, which should have been the employee’s working day, he no longer goes to work.

Important! To carry out such termination of the contract, it is necessary that one of the parties sends a dismissal proposal to the other the day before the last day of vacation.

The proposal can be written (including in the format of an electronic document) or oral in front of witnesses.

After negotiations (it can also be carried out remotely, using audio or video communications), the parties sign an agreement. To do this, the employee will still have to come to work if it is not possible to sign a digital signature.

Unlike a statement, an agreement between the parties cannot be revoked.

Dismissal procedure

Upon receiving an application, the employer is obliged to process it. An order is drawn up. According to the rules, the employee himself is notified of the dismissal order. But more often than not, an employee does not want to come on his vacation to make one stroke.

And this is his right, the employer cannot force him to come, because the person is on a legal vacation .

The solution to the problem is simple: an act is drawn up, a corresponding entry is made in the order and a calculation is made. Don’t forget about monetary compensation for unused vacations; you can read more about this in the next section.

Calculation of compensation payments

Persons who are officially employed are required to receive paid leave.
To apply for it, an 11-month work period is required, but an employee can apply for half of the required rest after six months of work. According to standards, vacation is provided in the amount of 28 days, but some enterprises provide their employees with additional days for harmful working conditions and other stress. But what is more profitable - vacation or compensation upon dismissal - is up to the employee to decide. The subordinate does not have to take out a whole vacation. The legislation provides for partial division of vacation days. Moreover, each part of the vacation should not be less than 14 days. In case of dismissal, the employer must pay the employee compensation for unused rest days. Payment must be made no later than the employee’s last working day at the enterprise.

The compensation payment is calculated based on the average daily earnings of the subordinate.

The billing period is calculated based on the calendar year. All earned monetary resources received by the employee must be divided by 12. The amount received is divided by a coefficient of 29.4, which means the average number of days in a calendar month.

When calculating the amount of compensation payment, not all of the employee’s income is taken into account. The following types of profit received are not taken into account:

sick leave payments;
downtime due to the fault of management;
travel allowances.

Some periods are also not included in the compensation payment. The following are not taken into account:

time off taken at your own expense;
absenteeism without good reason;
going on maternity leave.

After determining the daily wage, this amount is multiplied by the number of days that the employee did not use for rest.

For example, if a worker’s annual income is 340,000 rubles, the calculation is carried out according to the formula: 340,000 / 12 (months per year) / 29.4 (coefficient). The total is 963 rubles. This means average daily income. If an employee has 12 calendar vacation days left, then 963 is multiplied by 12, which totals 11,556 rubles.

Compensation can be made by the employer not only in case of dismissal of the employee. This is not always justified, but there are some exceptions:

Payment can only be accrued for additional vacation days. For example, if an employee has 28 days of basic leave and 6 additional days for harmful working conditions, then the organization has the right to issue compensation for only 6 days, and the employee will have to take the rest of the days off.
Pregnant women and minor citizens lose the right to compensation for additional days. In this case, reimbursement of funds is possible only in the event of dismissal of the employee.

Estimated payments are calculated in the same way as compensation payments for unused vacation days. Before receiving this money, the employee must write a letter of resignation. Funds are credited to the employee’s account during the period the company makes wage payments.

Employer's liability

Labor legislation protects the employer from arbitrariness and allows administrative penalties to be brought in the following cases:

Refusal to dismiss (not signing the application).
Violation of deadlines.
Non-return of work book.
Late payment.
Failure to issue certificates.

It is important for the employer to comply with labor laws by formalizing the dismissal as correctly as possible.

Dismissal at your own request is always possible . It does not matter whether the person is on vacation or at his workplace. All that matters is the desire of the employee and compliance with a simple procedure for terminating the employment relationship.

Terms of payments and issuance of labor

As for vacation pay, following the general rule, the accounting department needs to calculate it and have time to transfer it (hand it over) to the employee three days before he goes on vacation. The work book and the due final payment in connection with leaving work, including compensation for leave upon dismissal that remains unused, must be made on the last working day, since the person does not return to work from leave. If necessary, the employee has the right to receive other documents, including copies of them, certified in accordance with the procedure established by law, related to work. It is mandatory to obtain a certificate from the accounting department in form 2-NDFL for the last two years for probable payment of sick leave at a new place of work.

Last day of dismissal

Only employees who have not committed illegal actions can resign after taking a vacation:

absenteeism without good reason;
forgery of documents;
dishonest performance of one's duties, violation of them;
showing up at work while intoxicated;
dissemination of secret, state information;
damage, theft, embezzlement of funds;
neglect of safety requirements, leading to serious consequences (accident, injury) or their threat;
immoral acts, loss of trust.

The manager has the right to decide whether he can provide rest on his own initiative before dismissal. This is possible if the employee’s request coincides with the approved vacation schedule - stipulated in the employment contract.

If the dismissal occurs on the last day of vacation, which does not coincide with the working day, it is formalized on the day preceding it. It is then that the employee is introduced to the order, all calculations are made, and a work book is issued. It indicates the reason why the employment contract was terminated (clause 3, part 1, article 77 of the Labor Code of the Russian Federation), and the date of signing the order.

Methods for calculating leave upon dismissal

In order to include vacation in the working hours upon dismissal, you need to know how many days of rest the worker is entitled to. The HR department of the organization is responsible for counting the days of vacation.

The resulting number will depend on the following indicators:

How many full months did the employee work this year? Values that are less than half a month are excluded from the calculation. If the period is more than half a month, it is rounded to the nearest whole month. For example, if the period of work was 4 months. and 21 days, then 5 full months will be used in the calculation.
How many days out of 28 allotted annually fall within the period worked?

If there are unused vacation days from previous years, they should also be included in the calculation.

According to the letter of Rostrud dated October 31, 2008 No. 5917-TZ, in order to calculate the allotted vacation days, you need to:

divide the number of vacation days due per year by 12;
multiply the resulting value by the number of months worked.

With a standard vacation of 28 days, which is due to each employee, 2.33 days of vacation are calculated for a full month worked. The resulting value is rounded in favor of the employee (Letter of the Ministry of Health and Social Development dated December 7, 2005 N 4334-17).

Correct design

There is a certain procedure for dismissal at will. First of all, a statement is written in which the basis “own desire” is indicated and a date is set.

You can write an application in any form: on a computer, by hand, or send by mail. The main thing is clearly, without errors. The peculiarities of dismissal during this period are that the working period is already included. The reason must be indicated only in cases where it is not possible to work out the allotted time.

The second application should be completed after applying for leave. The HR specialist issues an order in the T-8 form, referring to Article 77 of the Labor Code of the Russian Federation. The employee is introduced to him by signing. If this is not possible, a mark is made on the document.

An appeal submitted for release from a position during the vacation period does not interrupt it. The manager is obliged to pay on time and provide a work book. If payments are not made on time, the dismissed person has the right to go to court.

In order to apply for scheduled leave, instead of an application, a notice (free form) is sent 2 weeks or earlier. Only after the employee signs for receipt will the order be issued. The calculation must be made 3 days before the start.

The right to dismiss on one’s own initiative is regulated by clause 3 of Art. 77 of the Labor Code of the Russian Federation.

Is it possible to leave work voluntarily while on annual leave?

Dismissal at the request of an employee on paid leave is a completely legal action. However, to do this, you need to take into account certain features .

Let's list them:

It is not necessary to interrupt your vacation in order to submit an application.
Don't forget about the deadline for submitting it.

A person has the right to go on vacation in debt. In such a situation, features arise that should be considered separately.

To terminate an employment contract while on vacation, you can submit an application to the HR department by registered mail.

A person can also pick up his work book after dismissal by mail. Only this will need to be indicated when writing the application.

Leave with care at your own request

You can exercise your right while on leave on the basis of Art. 127 of the Labor Code of the Russian Federation in two versions:

with the dismissal that followed;
replacement with monetary compensation for non-use of the exemption.

If an annual vacation of 28 calendar days is due, but the employee was at work at that time, he is not entitled to compensation. This is the difference from release on one’s own initiative, provided that a statement is written.

Calculation for dismissal from a position during a vacation is made before it begins; at the end of it, the manager will not owe anything. The calculation and work book are returned to the employee.

In a situation where an employee decides to terminate the employment relationship on his own initiative during vacation, he is obliged to notify the manager within two weeks. If the vacation is longer than this calendar period, you must come for payment on the day of dismissal.

Nothing will change in the procedure if you plan to terminate the employment relationship after a vacation at your own expense. Responsibilities must be fulfilled throughout the notice period. The calculation is made as for paid leave with dismissal - on the day before leaving on your own initiative.

Subtleties and nuances

When formalizing the dismissal of an employee immediately after a vacation, you need to take into account some features of this procedure.

These include:

If an employee quits without taking the vacation required by law, then in return appropriate monetary compensation is due. Its size depends on the number of remaining vacation days;
if the employee has not rested for more than a year, compensation must be paid for all unused periods;
if an employee was not on vacation last year, he has the right to take two annual paid vacations at once. This right does not apply to vacation followed by dismissal. In this case, the employee can use one vacation and receive compensation for the second;
if the last day of work falls on the last day of vacation, the employee has the right not to come to the organization in person. All necessary papers can be sent by mail;
if the application is submitted by postal order, then the working time begins to flow from the moment the employer familiarizes itself with the application, and not from the moment the application is sent.

If the employer does not agree to count the vacation as work and requires the employee to work for another 2 weeks, you need to file a complaint with the supervisory authorities.