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?
How many days of vacation are due for each month worked?
- Leave is required for every year worked. Monetary compensation for the time required to restore health is unacceptable;
- the right to use days on account of the next vacation arises after six months of work;
- The manager, regardless of the time of employment of the employee, is obliged to provide leave upon application:
- if this is a minor employee;
- an employee is preparing to become a mother, or wants to take annual leave after giving birth;
- at the request of employees who have adopted a baby under 3 months of age;
- Other cases are also possible, which may be provided for by various Federal laws in the Russian Federation.
For example, after six months, the boss may not sign a leave application for a newly hired employee due to production needs, while he does not have the right to refuse leave to a woman going on maternity leave or an employee who is under 18 years old.
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.
The employee worked for 7 months, how many days of vacation are due?
To calculate the number of vacation days subject to compensation to an employee upon dismissal, which relate to the employee’s period of work as a teacher, it is necessary to divide 56 days of annual leave by 12 (the number of months in a year), that is, for each month worked in this position, the employee is entitled to vacation of the duration 4.66 days. The results of these calculations must be multiplied by the number of full working months that the employee worked as a teacher before dismissal (7 * 4.66 = 32.62). The number of calendar days of unused vacation, by decision of the employer, can be rounded in favor of the employee to 33 days.
Dividing vacation into parts is possible by agreement between the employee and the employer (Article 125 of the Labor Code of the Russian Federation). Those. The employee's consent is required to use vacation in parts. Order a legal consultation Lawyer topics: Inheritance Housing.
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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.
How many days of vacation is an employee entitled to per month worked?
There are certain preferential categories of employees who, in addition to standard annual leave, are entitled to additional paid days of rest. How many days of vacation such employees are entitled to per month is calculated in a similar way: by dividing the annual duration of vacation, taking into account the main and additional components, by 12.
Employees have the opportunity to use accrued vacation no earlier than six months after employment without changing employer. To calculate how many days of vacation employees are entitled to, their length of service is taken into account. Its definition includes the following indicators:
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 vacation are due for each month worked?
The labor legislation of the Russian Federation does not provide for the possibility of providing annual paid leave in an incomplete amount proportional to the period worked. Thus, the annual basic paid leave must be provided in full (of the established duration, which, by virtue of Article 115 of the Labor Code of the Russian Federation, is 28 calendar days).
It should be taken into account that in the process of calculating the total duration of annual paid vacations, the summation of the main vacations with additional vacations is made, which is regulated by Art. 120 Labor Code of the Russian Federation. To calculate vacation days for which compensation is due upon dismissal on the basis of Art. 127 of the Labor Code of the Russian Federation, the following algorithm is used:
How many days of vacation are due if a person has worked for 5 months?
Leave order form Duration The duration of the first leave at a new job depends on the moment when the employee wished to take it. In this case, the Labor Code provides the right to paid rest in full, subject to working for 6 months. Moreover, this period of work must be continuous. It is important to understand that it is not necessary to go on vacation after six months.
If an employee uses the right to free leave only if the person does not work for two weeks, this will not in any way affect the subsequent accounting of the time of the next rest.
How many days of vacation are required for 10 - 11 months?
I have been working since January 1, 2021, for 7 months of work for 2021, I paid vacation for 2021, I was given 2 weeks, from August 1, 2021, I went on vacation for 2 weeks. From September 1, 2021 to June 30, I work at my own expense, I didn’t take any vacation, and from July 1, they give paid vacation only 21 days, they say that 28 days are not allowed because I didn’t work a full year, and they count from that year after vacation 10 months or with vacation 11 months so only 21 days instead of 28 is this correct
The employer is wrong. An employee’s right to full-length leave comes after continuous work for 6 months, as stated in Article 122 of the Labor Code of the Russian Federation. Thus, your employer initially violated labor laws by giving you only 14 days. The remaining 14 days must be provided to you within 12 months of the next year. That is, you must receive it and use it accordingly before December 31, 2021.
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Vacation for each month worked: how many days is an employee entitled to in 2021
Based on the minimum vacation duration of 28 days, you can easily calculate how many days are allotted for 1 month worked. Since there are 12 months in a year, you need to divide 28 by 12. The resulting value is 2.33. That is, for each month that an employee works at the enterprise, he is entitled to a little more than two days of vacation. For the first and second month - 5 days, for the first, second and third - 7, etc.
Another type is educational recreation. It is provided for the duration of exams or other events related to the employee’s training. In addition to the application, you must also provide a certificate from a university or other educational institution.
How many days of vacation is an employee entitled to per month worked?
If the duration of the employment agreement is more than two months, and the work performed by the employee is not seasonal, then for each month he performs his labor duties, he is entitled to 2.33 days of paid time off.
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It turns out that with a standard vacation duration of four calendar weeks, the employee is entitled to 4 * 7 days / 12 months = 2.33. This is exactly how many vacation days are due per month worked. This figure is used by accounting employees and personnel officers to determine the required duration of vacation at a certain point in time.
If you have worked for less than a month, how many days of vacation are you entitled to?
Therefore, it is worth providing unused vacations in chronological order, although there are no clear instructions on this matter. The employee also has the right to ask to be given some part of the unused vacation at a time that is not provided for in the schedule.
He can exercise his right and go on vacation, but at his discretion he can take a vacation after the end of the calendar year of his work. Moreover, new employees usually hired into the organization are not included in the vacation schedule drawn up at the end of the year.
How to calculate days of unspent vacation upon dismissal
Vacation days that were not used are also calculated differently. Each month worked in a year has a digital designation of 2.33 days. This amount is found by dividing vacation days, and there are currently 28 of them, by months of the year, that is, by 12. And to find out the exact number of vacation days, you need to multiply this value, that is, 2, 33, multiply by the number of days of vacation experience .
But as far as we understand, if you divide 28 by 12, you get a fraction and it is infinite. It is rounded to a value of 2.33, and it turns out that the data is not accurate and the fact that days are calculated using these values can also be incorrect. Sometimes the counting is absurd, for example, take a look at this count in photo 2.
