For many workers, the financial crisis has become a reason for changing jobs and professional reorientation. In addition to changing positions, professions or specialties in economically unstable times, one can observe an active process of movement of workers from one employer to another, which is due not only to the wishes of the workers themselves, but also to certain established relationships between different employers. For example, some organizations carry out a kind of “exchange” of employees in order to optimally use human resources. In addition, employees can be transferred to another company in the order of succession of organizations, namely during reorganization.
Types of translation
To understand whether compensation is paid for unused vacation upon transfer, it is important to know where the employee will be transferred. There are two types of employee transfer:
- internal movement of people between departments of one institution;
- external transfer from different departments, which occurs by calculation.
In both cases, consent to the movement of each of the parties is required: the employer and the employee.
Options for moving from one enterprise to another, ending with transfer, are determined by the initiative of each party. They are as follows:
- Transfer of employees at their own will. With this option, the head of the department sends an invitation letter to the current manager, which contains a notification of readiness to hire the required employee. The notice may be sent by mail or delivered in person. If the manager agrees to transfer the employee to another organization, he needs to submit an application for dismissal in connection with the move. Then an order is issued with information entered into the work book and personal file. The employee receives all documents and compensation payments, if such right exists. After this, a position in the new institution takes place.
- Transfer of an employee at the initiative of the manager. This may happen due to a reduction in the workforce at the enterprise. Next, the employer searches for work for his subordinates. After that, the leaders discuss the terms of the move. Employees must agree. This is fixed in a tripartite agreement, which provides for an indication of the position, payment and working conditions.
Both options have a number of features. The manager must complete the documentation correctly in compliance with legal regulations.
The legislation of the Republic of Belarus gives an employee the right to resign by transfer to another employer. How to make final payments to such an employee? Is it permissible to grant him a leave of absence during the first month of work for another employer? Let's look at these questions using practical examples.
Transfer is an assignment by an employer to an employee of work in another profession, specialty, qualification, position (with the exception of a change in the name of the profession or position in accordance with the law) compared to those stipulated in the employment contract, as well as assignment of work to another employer or in another location (outside with the exception of a business trip) (Article 30 of the Labor Code of the Republic of Belarus; hereinafter referred to as the Labor Code).
To transfer an employee from one organization to another you need:
1) a written invitation to work in the order of transfer from one employer to another as agreed between them (clause 2 of part one of Article 16 of the Labor Code);
2) an employee’s application with a request for dismissal by way of transfer to another employer (part two of Article 30 of the Labor Code);
3) issue an order to dismiss the employee by way of transfer, with which the employee is familiarized with signature (clause 4 of part two of Article 35 of the Labor Code);
4) in the employee’s work book, make an entry “Dismissed due to transfer to XXX LLC”, clause 4 of part two of Art. 35 of the Labor Code of the Republic of Belarus" (clause 38 of the Instructions on the procedure for maintaining labor books, approved by Resolution of the Ministry of Labor and Social Protection of the Republic of Belarus dated June 16, 2014 No. 40);
5) make final payments to the employee on the day of dismissal (Article 77 of the Labor Code).
To conclude an employment contract with a new employer you will need:
1) passport (copy) or other identification document;
2) work book;
3) insurance certificate;
4) military ID (for persons liable for military service subject to conscription for military service);
5) conclusion of the medical and rehabilitation expert commission (MREC) on the state of health (for people with disabilities);
6) written statement from the employee;
7) an order to hire an employee in connection with the transfer.
Important! When transferring to work for another employer, no preliminary test is imposed on the employee when concluding an employment contract.
Example 1. Final settlement with an employee upon transfer to another organization
Ivanov I.I. resigns on July 22, 2016 by way of transfer to another organization. Wages for days worked in July were accrued in the amount of 380 rubles. 96 kopecks I.I. Ivanov’s official salary:
– from 07/01/2016 – 500 rub. (after denomination);
– until June 30, 2016 – RUB 5,000,000. (before denomination).
He worked on a 5-day workweek schedule (weekends - Saturday, Sunday) with an 8-hour workday.
The employee has unused vacations for the last 3 working years (72 calendar days).
Important! The employer is obliged to provide the employee with labor leave during each working year (annually) (Article 170 of the Labor Code).
The employee has not used vacation leave for 3 years. This does not deprive him of the right to receive compensation for them. The employer is obliged to pay compensation for all unused days of labor leave, incl. and when transferring to another employer (Article 179 of the Labor Code).
For reference: from July 1, 2021, monetary compensation is calculated taking into account the denomination carried out (Decree of the President of the Republic of Belarus dated November 4, 2015 No. 450 “On the denomination of the official monetary unit of the Republic of Belarus”).
We will make a full settlement with the employee
To determine monetary compensation, we calculate average earnings based on the salary accrued to the employee for the 12 months preceding July 2021, i.e. from July 2015 to June 2016 (clause 4 of Instruction No. 47*).
___________________ * Instructions on the procedure for calculating average earnings maintained in cases provided for by law, approved by Resolution of the Ministry of Labor of the Republic of Belarus dated April 10, 2000 No. 47 (hereinafter referred to as Instruction No. 47).
The employee's salary in a denominated amount from July 2015 to June 2021 will be RUB 6,000. (RUB 5,000,000 / 10,000 × 6 months).
Note. From July 1, 2021, payments established by regulatory legal acts, incl. local, in absolute (digital) sizes, are subject to reduction by 10,000 times (see Explanation on the procedure for calculating wages of employees, allowances for military personnel, employees with special ranks, Suvorov students, graduates of military units, pensions, scholarships, benefits and other payments established by law in connection with the denomination of the official monetary unit of the Republic of Belarus (letter of the Ministry of Labor and Social Protection of the Republic of Belarus dated March 15, 2016 No. 1-2-12/525)).
Average daily earnings are: 6,000 / 12 months. / 29.7 = 16 rubles. 84 kopecks
Note. Average daily earnings are determined by dividing the wages actually accrued to the employee for the months taken to calculate the average earnings retained during vacation (payment of compensation) by the number of these months and by the average monthly number of calendar days equal to 29.7 (clause 5 of Instruction No. 47).
The average salary retained by an employee during the main labor leave is: 16 rubles. 84 kopecks × 72 days = 1,212 rubles. 48 kopecks
The accounting entries are presented in the table:
Example 2. An employee hired as a transfer expressed a desire to go on leave in the first month of work
Ivanov I.I. hired by the organization by transfer from July 23, 2016. He has a 5-day working week with an 8-hour working day (Saturday, Sunday - days off).
The official salary for an employee according to the staffing table is 700 rubles.
In the first month of work, Ivanov I.I. wrote an application for granting him a leave of absence from 07/26/2016 for 24 calendar days. Before going on vacation, he worked 1 working day (8 hours). Earnings for this day amounted to 33 rubles. 36 kopecks
For reference: labor leaves (main and additional) for the first working year are granted no earlier than after 6 months of work with the employer (Article 166 of the Labor Code).
Important! Before the expiration of 6 months of work, the employer is obliged to provide labor leave at the request of the employee hired by transfer (clause 3 of part two of Article 166 of the Labor Code).
Vacation pay to Ivanov I.I. we will calculate, guided by paragraph 11 of Instruction No. 47.
Let us determine the average hourly earnings by dividing the wages actually accrued to the employee during the period taken to calculate the average earnings retained during vacation by the hours actually worked during this period:
33 rub. 36 kopecks / 8 hours = 4.17 rub.
Let's calculate the average monthly earnings by multiplying the average hourly earnings by the average monthly number of estimated working hours, determined by dividing the corresponding annual estimated working hours established by law by 12 months.
Note. For 2021, an estimated standard of working time has been established with a full standard of its duration for a 5-day working week with days off on Saturday and Sunday of 2,038 hours (clause 1 of the resolution of the Ministry of Labor and Social Protection of the Republic of Belarus dated October 22, 2015 No. 64 “On establishing the estimated working time working time standards for 2021"). Therefore, the average monthly number of working hours in 2021 will be 169.8 (2038 hours / 12 months).
Average monthly earnings are:
4 rub. 17 kopecks × 169.8 = 708 rub. 07 kop.
Let's determine the average daily earnings by dividing the average monthly earnings (taking into account adjustments due to an increase in tariff rates and salaries, if such an increase took place in a given period) by 29.7:
708 rub. 07 kop. / 29.7 = 23 rub. 84 kopecks
Let's calculate the average earnings saved during the labor leave by multiplying the average daily earnings by the number of calendar days of vacation:
23 rub. 84 kopecks × 24 days = 572 rub. 16 kopecks
Possibility to save vacation
When an employee changes positions within the same organization, it is very important to understand how to maintain vacation rights.
An employee can be transferred due to a promotion or redistribution of responsibilities. The organization has remained unchanged, so maintaining leave is mandatory in such a situation. The course of events is reflected by the creation of an order at the enterprise to transfer an employee from one division to another or from one position to another. The employee must familiarize himself with the document. This procedure does not provide for any other changes.
In accordance with the current legislation of the Russian Federation, when promoted, the vacation period may increase or the right to additional vacation may appear. In this case, all changes will be counted from the period when the transfer occurred. The previous vacation remains unchanged and is displayed in a specialized schedule.
An employee has the right to vacation only after 6 months of work and not earlier. This period is regulated by the Labor Code of the Russian Federation.
Leave when transferring within the company
There are often cases when employees get promoted or change the department in which they work. All these situations are internal transfers, i.e. movements within one company (legal entity). At the same time, the employee continues to work in the previous organization without changing the employer. There is no layoff.
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Consequently, such an employee retains most of the previous constants, such as a personnel number, an employment contract, the right to rest and the number of days off. Since the employee is not fired, he remains included in the vacation schedule and can go on it as planned. Unless a situation arises where the employer has the right to postpone vacation dates.
Changes in leave when transferred to another position within the company
When transferring, leave is retained if such transfer was made within the same enterprise. In the process of formalizing the transfer of an employee from position to position, an additional agreement to the employment contract is drawn up. The text of the agreement must specify all changing terms of the contract:
- new position, division;
- new salary (tariff rate);
- new rules for calculating vacation, etc.
According to the labor code, all workers can count on 28 calendar days of vacation. Therefore, it is impossible to reduce its duration during translation. In addition, if the employee is given an irregular schedule or new working conditions are harmful to his health, he is entitled to additional leave.
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The amount of additional rest, as a rule, is prescribed in the collective agreement or other company regulations. It would not be superfluous to indicate the additional size. vacation in an additional agreement to the employment contract.
Note! The calculation of length of service for the next vacation for a transferred employee will not change and will be counted from the date of admission. Whereas he has the right to an additional one only after moving
And, accordingly, the countdown of the calendar year will begin from the date of transfer.
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The right to temporary rest from work
When moving to a workplace in another organization, the employee will have to make payments from the previous enterprise. This means that leave upon dismissal by transfer to another organization is not preserved. The situation requires the following actions by the employer:
- the employee receives cash compensation payments for unregistered vacations;
- The employee is first asked to take all vacation days off and then resign.
Moving to another job involves accumulating new vacation time. So you shouldn't rely on the old one.
An employer may provide an employee with overtime rest if there is a good reason for this. But at the same time, the employee will have to pay compensation in case of dismissal for the used part of the unauthorized leave.
It is worth considering that in case of any dismissal due to transfer, we retain the right to leave or compensation payments are paid for the remaining days.
Responsibility for late payments to a dismissed person
Salary payment
All types of pay (vacation pay, salary, benefits) are transferred on the day of dismissal of the employee. If the director of the enterprise does not pay the settlement within the established time frame, the dismissed employee has the right to appeal to the labor inspectorate, the court and the prosecutor's office.
Moreover, a complaint can be submitted to these three authorities simultaneously. As for the statute of limitations for disputes about delay or non-payment in full, a claim can be filed with the court within 3 months after dismissal.
In addition to salary and other compensation payments, the employee has the right to demand from the former employer payment of interest for days of delay at the rates established by the Central Bank.
How to calculate and pay vacation when transferring to another job
It happens that it happens in a company that one of the employees is transferred to another position, which differs not only in the amount of wages, but also in the number of vacation days due to him.
And then the question arises of how to correctly calculate the number of days he should rest and how much vacation pay he needs to pay in connection with these changes.
For example, if an employee previously worked in a position where he was entitled to fifty-six days of vacation, and he worked in this position for some time, and the remaining time he worked in a position where he was entitled to only twenty-eight days of vacation.
How to calculate vacation days?
