Retirement leave. Receiving compensation for time off upon dismissal: all the subtleties and "pitfalls"

The court considered a dispute on the legality of bringing the employer to administrative responsibility for delaying wages (Decision of the Tambov Regional Court of June 18, 2018 in case No. 7-230/2018). The state labor inspector fined the joint-stock company for the fact that the employee, upon dismissal, was not compensated for unused rest days at the time of dismissal for work on weekends.

The employer believed that there was no offense in his actions. To substantiate its position, the company pointed out that when engaging in work on weekends, the employee agreed in writing to pay for such work in a single amount with the provision of other days of rest. At the same time, the employee did not indicate the time of use of time off, and in the future they were provided to the employee at his request. However, some rest days were not used by the employee until the moment of dismissal. The employer believed that by paying the rest days in a single amount, he acted in accordance with the law. The use of rest days by the employee depended on his discretion, the employer was not entitled to force the employee to take time off, and the fact that the employee did not spend some of them before dismissal does not give rise to the employer's obligation to compensate them in any way.

Should the employer provide the employee with a proportionally calculated rest time depending on how much he worked on a weekend or non-working holiday, or is he obliged to provide a full day of rest? The answer is in "Encyclopedia of Solutions" Internet version of the GARANT system. Get 3 days for free!

However, the court did not agree with these arguments. As stated in the decision, it follows that a single payment for work on a weekend or non-working holiday is made only if the employee was granted a day of rest. If the employee has not exercised his right to another day of rest, the employer is obliged to pay the employee extra for work on the corresponding day off. This point of view is quite widely represented in judicial practice (the appeal ruling of the Investigative Committee in civil cases of the Voronezh Regional Court of December 7, 2017 in case No. 33-9238 / 2017,).

However, the reverse position is no less common among judges, in support of which it is indicated that the legislation does not provide for compensation for unused time off; such compensation is established only in respect of unused vacation days (

Settlement with an employee upon dismissal requires special attention from the accountant, since errors can lead to unwanted litigation and administrative penalties.

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When calculating the amount of the final payment due to the employee at the time of dismissal, the question may arise of compensating for time off, to which he is entitled, but did not use.

What does the law say?

The main legislative act regulating relations between an employer and an employee is the Labor Code (Labor Code of the Russian Federation).

It lacks both the term "time off" and the direct obligation of the employer to provide it or compensate it in cash.

Most often, time off means additional rest time, which is compensated to the employee in cases established by the legislation of the Russian Federation:

It is the responsibility of the enterprise to ensure that due and used time off is properly accounted for.

How are layoffs granted?

What to do with time off upon dismissal depends on several conditions:

• Does the enterprise properly formalize and record the time off that employees are entitled to.
• For what reason did the employee have time off.
• Whether the employee wants to use the time off due to him until dismissal or insists on their monetary compensation.

Considering the above conditions, we will consider the options that the employer has in relation to the time off for the departing employee.

Option 1:

If the facts of overtime or work on weekends are not reflected in the documentation of the enterprise (there are no orders, and marks), then you can offer the employee:

• use time off and quit;
• just forget about them.

What proposal will be announced to the resigning employee - this will depend on the decency and personal attitude of the leader towards him.

Option 2:

Additional hours worked are documented accordingly and the employee is not opposed to using his time off until dismissal.

It will also be an ideal option for the enterprise, since it will not require additional financial costs from it (except for settlements with donors and shift workers) and will protect against potential litigation.

Option 3:

The employee's right to time off is documented, but he wants to quit without using them, having received monetary compensation in return.

This happens when the employee's priority is a new job, which he wants to start after working the mandatory 14 days or even faster (by agreement with the employer).

What should an accountant do: pay or not?

This situation does not have a clear legal regulation. Opinions of legal consultants also differ.

But knowing that:

• for work overtime and on non-working days repayment is due at higher rates;
• for non-compliance with labor laws, you can be subject to fines by inspection bodies;
• if an employee goes to court, you can lose a lot of time, effort and still be forced to pay compensation for unused time off.

After all, if an employee previously wrote a statement that he wants to receive additional days or hours of rest, but did not use them, then by refusing him monetary compensation, you can become guilty of violating the law.

In fact, the employee is deprived of the right to legal compensation for his labor, since he simply did not have time to use this right due to.

Comparing the requirements of Art. 84.1 and Art. 140 of the Labor Code of the Russian Federation on full payment to the employee on the day of dismissal with the norms of Art. 152 and Art. 153 of the Labor Code of the Russian Federation on the procedure for compensating work in special cases, it is reasonable to conclude that it is safer to pay compensation to the employee for unused time off.

However, this does not apply to days off for duty, which are not payable.

Consider an example of payment for time off upon dismissal.

Situation 1:

The employee worked 8 hours of overtime in October (4 hours on 10/09/2015, 3 hours on 10/19/2015 and 1 hour on 10/30/2015). In his application, he expressed a desire to receive additional rest in December. But he quits on December 7, 2015, without using the time off. The average hourly salary of an employee is 160 rubles.

Calculation:

Note: for the first 2 hours of work, the hourly rate should be multiplied by 1.5, and the remaining hours of work by 2.0.

1. Compensation for 10/09/2015: (2 hours * 160 rubles * 1.5) + (2 hours * 160 rubles * 2) = 1,120 rubles
2. Compensation for 10/19/2015: (2 hours * 160 rubles * 1.5) + (1 hour * 160 rubles * 2) = 800 rubles
3. Compensation for October 30, 2015: 1 hour * 160 rubles * 1.5 = 240 rubles

Total amount of accrued compensation: 2,160 rubles

Situation 2:

In October, an employee worked on a day off (10/25/2015) for 7 hours. I wrote an application for payment for his work in a single amount in October and providing him with an additional day off in December. But he leaves on December 7, 2015, without taking advantage of the day off. The average hourly salary of an employee is 150 rubles.

Calculation:

Note: since the employee received a one-time payment in November, a one-time compensation will be accrued in December for the hours actually worked. In total, the employee will receive double pay.

Compensation for October 25, 2015: 7 hours * 150 rubles = 1,050 rubles

Features of registration of compensation for time off upon dismissal

The following documents are drawn up for payment of compensation:

• an employee's statement on the accrual and payment of monetary compensation to him for unused additional rest time;
• the order of the head on the accrual and payment of the amounts due to the employee;
• accounting reference-calculation of compensation amounts for time off.

Application example:

An example of an organization's order:

The accrued amounts must be paid to the employee on the day of dismissal, along with salary, travel and other payments.

So, we can conclude that the absence in Russia of a clear legislative regulation of the procedure for providing and monetary compensation for the remaining days off puts the company's management before a choice: either act "in good faith" and pay the leave to the employee who is leaving, or refuse to pay, having prepared arguments for a possible trial.

The most calm and definitely legal way is to convince the employee to use the time off due to him, and then quit.

12.03.2018

The day of additional rest of the employee is called. The employee receives it when he does overtime work, comes on a non-working day, etc. According to the law, you can choose not a day off, but an increased pay.

When the contract between the employee and the company comes to an end, disputes often arise about unused time off, since there is no such concept in the Labor Code of the Russian Federation. This begs the question: is it possible to get money for unused vacation?

What to do if there are unused holidays?

Russian legislation provides for compensation for overtime work.

Basic provisions regarding this issue:

• Article 152 of the Labor Code of the Russian Federation - the employee himself chooses what type of compensation he will receive: money or time off that will not be paid.
• Art. 153 of the Labor Code of the Russian Federation - work on official non-working days or weekends must be paid at a double rate. Otherwise, the employer is obliged to provide paid rest.
• Art. 301 of the Labor Code of the Russian Federation - overtime work on a rotational basis is paid for each day. The amount of payments is determined by the average daily salary.
• Art. 186 of the Labor Code of the Russian Federation - a blood donor receives two paid days of rest, starting from the day of blood donation.

Often there are cases when compensation has not been made, time off is not provided, and the employee is planning to leave. A fair question arises as to what to do with time off, how they will be compensated.

There can be no misunderstanding if processings are officially registered. In this case, the authorities are obliged to provide days off until the termination of the employment contract or make payment upon dismissal.

If the agreements were oral, then it all depends on the personal qualities of the leader, as well as on his relationship with the employee.

Is there compensation?

If an employee decided to take days off as compensation, but did not use them, then upon dismissal, the head is obliged to pay compensation for unspent holidays. Each rest day is multiplied by the worker's daily single rate.

The legislation requires that all facts of economic life be documented.

Facts mean transactions, operations and any other events that can affect the cash flow of an economic entity.

From this it turns out that the day off must be issued by an accounting document (order).

This is due to the fact that compensation for absenteeism affects the financial result of the organization, that is, it falls under the law.

How to make compensation for unused days off? The following documents are used in this procedure:

1. Employee statement.
2. Employer's order.
3. Certificate from the accounting department with the calculation of the amount of compensation.

How are you paid for voluntary leave?

The possibility of paying for unused days off upon dismissal will be affected by:

• the choice of an employee - the use of time off or payment according to the rate.
• the reason for the extra rest.
• the presence in the company of accounting for processing.

Is it obligatory for the employer to pay for unused time off by the employee upon termination of the employment relationship at his own request? Unfortunately, this particular the issue is not regulated by the legislation of the Russian Federation.

But there is an important detail here: in comparison with layoffs or other grounds, when the dismissal occurs at the initiative of the boss, when terminating the employment contract of his own free will, the employee has the opportunity and time to think everything over in order to take the right decision and measures.

It is recommended that you discuss this issue with your superiors., personnel workers in order to understand what is the best thing to do in order not to lose their days off: take time off before dismissal or, nevertheless, compensation will be paid for them upon termination of the employment contract.

Payment Calculation Examples

Every officially documented day off if not used, must be paid in the appropriate size.

According to it, two hours of work over the norm are paid at one and a half rate, and all subsequent hours - at double.

If the employee was called to work on official holidays, then the time can be safely doubled.

Based on this, for each day it is necessary to make an individual calculation of payment of compensation upon dismissal. Let's look at a few examples.

When processing

Example conditions:

In October 2018, in total, the employee worked 8 hours in excess of the norm:

• 4 o'clock October 9,
• 3 o'clock October 19,
• 1 o'clock October 30th.

On the seventh of December, he quits of his own free will, without using time off. On average, an employee receives 150 rubles per hour.

Payment calculation:

• October 9: 150 rubles * 2 hours * 1.5 + 150 rubles * 2 hours * 2 = 1050 rubles.
• October 19: 150 rubles * 2 hours * 1.5 + 150 rubles * 1 hour * 2 = 750 rubles.
• October 30: 150 rubles * 1 hour * 1.5 = 225 rubles.

The amount that the employer must pay upon dismissal for unused time off is 2025 rubles.

Note: during processing, the first two hours of extracurricular work are paid at a rate of one and a half, and the subsequent hours at a double rate.

When working on a day off

Example conditions:

On October 25, 2018, the employee had to go to work on a day off after working 7 hours.

On December 7, he formalizes the dismissal of his own free will, without using the day off, a one-time payment was received for work on the day off.

Consider the situation with an average hourly salary of 160 rubles:

Calculation:

Note: since work on a day off has already been paid in a single amount, the December compensation upon dismissal will occur at a single rate based on the hours actually worked. If we add the first and second payments, we get that in fact the employee received double payment.

A similar procedure applies when entering the workplace.

Compensation must be paid on the same day the employee leaves. along with salary and other benefits.

conclusions

Since the beginning of 2012 the concept of "time off" ceased to exist in Russian law. Today it is considered obsolete and absent from labor law. Despite this, today an extra day off is called a day off out of habit.

In Russian federation there is no clear legal basis to regulate monetary compensation for unspent holidays. This effectively gives each manager a personal choice: to do the right thing by making all the necessary payments to the departing employee, or to refuse, preparing for a possible meeting in court.

The employee, on the other hand, turns out to be dependent on the employer: to accept his offer to simply “rest” the prescribed time off, or to start a long legal battle, paying a lot of fees, spending a lot of nerves and effort, when it is not known who will be right and who is wrong.

The best and legal way to resolve the issue is to take a day off instead of the court, if the leader does not meet halfway. Statistically, the amount that is expected to be received for the day off does not correspond to going to court for it.

Upon dismissal, money is paid for the actual period worked, as well as for vacation. But what about accumulated time off? The article discusses examples of calculating payment on a day off, gives recommendations on how to demand your legitimate money from management.

What to do if there are unused holidays

At enterprises, overtime work is compensated by the provision of additional days off (time off). In the case when an employee writes a letter of resignation, he may not have time to “walk off” all the days off. Upon termination of the employment relationship, unused days off are compensated.

But there are a lot of nuances: for example, upon dismissal of one's own free will, payment for time off occurs only when this right has been documented for the employee. For example, an employee was forced to go to the office on a public holiday. In this case, a document is drawn up, which indicates that this shift must be paid.

If the employee does not have documentary evidence in his hands, the payment of unused time off depends only on the integrity of the employer.

Below are several options for the development of events.

Option 1. There were working off on weekends and holidays, but they were not fixed in any way. As mentioned earlier, in this case, the employee cannot count on a guaranteed payment. That's why:

• you can just quit and forget about time off;
• you can first take off unused days off, and then write a letter of resignation.

In this case, you can advise the employee to be more attentive to his work off in the future and at the next place of work to record all the additional hours spent at work in the time sheet.

The entire amount should be paid to the employee on the day of dismissal, along with wages, as well as compensation for unused vacation and other payments.

Are time off for work on weekends and holidays paid according to the Labor Code of the Russian Federation upon dismissal

According to article 153 of the Labor Code of the Russian Federation, when working on holidays and weekends, an employee has the right to:

• or for double payment of the time that was worked out;
• or for a one-time payment of time, but with the provision of additional days for vacation.

Moreover, if an employee chooses the second option, it does not matter how many hours he worked on a day off - he is provided with an additional day.

The worker may choose to take additional unpaid rest time or monetary compensation for the hours he overworked. The calculation is carried out according to a coefficient of 1.5 for the first two hours of processing and 2.0 for the next.

Processing within the shift schedule is regulated by Art. 301 of the Labor Code of the Russian Federation. The employee has the right to count on a day of rest between shifts, which will be paid. regulates the absence of an employee at his workplace if he donated blood that day. In the donor center, the employee is issued a certificate stating that the donor is entitled to pay for this working day, as well as to paid time off the next day, which, at the request of the donor, can be attached to the main vacation.