If you were not paid vacation pay upon dismissal?

The relationship between the employer and the subordinate is regulated by the provisions of labor legislation, which clearly defines the rules and requirements for conducting, including the procedure for canceling an employment contract. Each employer is obliged to complete the necessary documentation before the person leaves the organization, as well as settle accounts with him, paying the due payments on the day of dismissal. However, unfortunately, not all employers strictly comply with the requirements of the legislator; some, caring about their own financial situation, shy away from providing their subordinates with the required funds. Failure to pay compensation upon dismissal is a serious violation of the norms of the Labor Code of the Russian Federation and the labor rights of employees, which threatens the employer with administrative liability.

On the day of termination of the employment contract, the employee must be accrued:

1. Earnings for the last period of time worked;
2. Financial compensation for a vacation period that a person did not have time to use (or did not fully use).

As a rule, the first type of payment is always transferred, since receiving earnings is the basis of the relationship between the employer and the subordinate. The second type of payment may be hidden from an inexperienced and legally uneducated employee. We will talk about the specifics of paying compensation, as well as the consequences of withholding it below.

Procedure for payment of compensation upon dismissal

The most difficult stage of completing cooperation with the employer is the actual adoption of such a decision by the employee, after which the person must:

1. Fill out and submit to your boss an application for the upcoming termination of the employment agreement;
2. If the manager responds approvingly, his signature is affixed to the document, and the application is transferred to the accounting department;
3. The accountant’s task is to carry out the necessary calculations to establish the total amount due to be transferred to the person on the day of dismissal. To calculate the size of the mat. compensation for vacation , the specialist needs to establish the number of available non-vacation days, which will be paid to the employee;
4. Based on the citizen’s application, HR department specialists or the boss himself develop and issue an Order to cancel the person’s employment contract. In addition, personnel officers are responsible for making an appropriate entry in the employee’s work book;
5. On the last working day, the resigning citizen receives his work document, as well as the full amount of money, including compensation for unused vacation.

What to do if your employer does not pay you vacation pay upon dismissal?

Know that non-payment of vacation pay upon dismissal is not always illegal, everything will depend on whether you went on vacation or not, these reasons determine whether vacation pay will be paid, or, on the contrary, the employer withholds a certain amount from you for unworked vacation days, We will look at the reasons in more detail later in the article.

According to Article 127 of the Labor Code of the Russian Federation, upon dismissal, the employee is paid compensation for all unused vacations.

That is, it turns out that if you did not go on vacation, then in the event of termination of your employment contract, the employer is obliged to pay you, in addition to your salary (and in the event of staff reduction or liquidation of the organization, you must be paid 2 average monthly salary) to also pay compensation for unused vacation. But compensation is paid only if you did not go on vacation.

If you have received a refusal to pay you compensation for unused vacation and, according to the documents, you really did not go on vacation, then you need to defend your right to compensation, because the employer violated your rights and most likely, even if you talk to him, he will not voluntarily give you the money will pay. In such a situation, you immediately need to go to court to protect your rights.

It makes no sense to contact the labor inspectorate, since they will not be able to recover money from the employer, they will simply issue an order to the employer, in which they will demand to eliminate the violation, but no more, the employer will also be subject to administrative liability under Part 6 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation and if your employer is an official person, then he will pay a fine in the amount of 10,000 to 20,000 rubles, if an individual entrepreneur, then the fine will be from 1,000 to 5,000 rubles, and if the employer is a legal entity, then the fine will be from 30,000 to 50,000 rubles, which is substantial.

Only a court can recover unpaid compensation from an employer. But in order to restore your rights, you need to hurry, since in the case of labor disputes, a shortened statute of limitations applies. How to protect your rights and what statute of limitations are applicable in the case of labor disputes will be discussed below in the part of the article on how to defend your rights.

In the meantime, while you are preparing a statement of claim in court, don’t be lazy and file a complaint against your employer with the labor inspectorate, let them fine you, so that it doesn’t happen again. However, if the inspection does not find any violations, then there will be no reason to prosecute the employer, since there simply will not be an administrative offense.

Responsibility of the employer for non-payment of compensation for vacation

In order to understand in advance what amount of accruals should be expected, each worker should study the norms of labor legislation, as well as independently calculate the amount of future payment for vacation in order to eliminate accounting errors. If the employer and the chief accountant deliberately withhold compensation for vacation pay, then, according to the Law, they face the following sanctions:

• Financial liability of the head of the organization, which involves the payment of a penalty for each day of delay in accruals due upon dismissal. The amount of such a penalty is 1/150 of the Central Bank refinancing rate for each day of delay;
• Administrative responsibility, to which both the head of the company and the organization as a whole can be involved. Thus, the amount of fines is:
• 1-5 thousand rubles for representatives of management or for individual entrepreneurs;
• Suspension of the functioning of the company for no more than 3 months – for individual entrepreneurs;
• 30-50 thousand rubles or suspension of activities for no more than 3 months - for legal entities. persons

If an employer is found to have violated the provisions of the Labor Code of the Russian Federation not for the first time, the official may be suspended from his position for a period of up to three years.

• Officials who, not for the first time, for their own selfish purposes, violate labor laws and do not pay their subordinates financial benefits, including obscenities, are brought to criminal liability. vacation pay compensation for two or more months. Such violators face:
• Accrual of penalties, the amount of which can reach 120 thousand rubles;
• Prohibition from holding a current or similar position for up to five years;
• Imprisonment for no more than two years;

In the event that the employer’s unlawful acts resulted in very serious financial problems in the employee’s family, for example, due to lack of funds and the inability to pay for treatment for one of the relatives, the sick person died, then the penalty is much more serious:

• Accrual of penalties ranging from 150 thousand rubles;
• Imprisonment for 3-7 years, as well as a ban on holding office for up to three years.

How to calculate compensation for unused vacation period

Some employees do not have time to complete the 28 days of annual leave provided by the employer (or more, subject to the availability of an additional vacation period). Right to receive mat. Payments for the remaining weekends are provided to citizens even if there is only one day not taken off. As mentioned earlier, the employee should calculate the amount of payments in advance in order to avoid an accountant’s mistake. To do this, you can use the following algorithm:

1. Determine the total amount of earnings transferred for the previous year by summing up monthly income for 12 months;
2. The resulting value is divided by the number of months in a year, and then by a constant indicator of 29.3 (the value that is usually used to denote the average number of days in one month). The output is the employee’s average earnings per shift;
3. The resulting value must be multiplied by the number of vacation days that the person wants to replace with a cash payment.

EXAMPLE: Citizen K’s earnings for the previous year amounted to 540,000 rubles. During the billing period, no periods of temporary disability were identified, and there were no days off. For the current year, the duration of his unused vacation period is 20 days. Thus, the amount of material compensation received will be:

540,000 / 12 / 29.3 * 20 = 30,716.7 rubles

When determining the amount of average annual earnings, it should be taken into account that the amount of annual income does not include:

• Periods of time when the employee did not actually work, but his earnings remained the same;
• Payments accrued for periods of temporary disability of a person;
• Maternity accruals;
• Periods of earning income when a person did not fulfill official obligations not through his own fault, but through the fault of the organization’s management;
• Various social charges or mat received by a person. support.

How to correctly calculate vacation pay upon dismissal

It is important to know and remember that you have the right to annual paid leave. This is indicated in the Labor Code of the Russian Federation, Article 114.

Basically, the employer provides vacation of 28 days, but for some specific reasons its amount can be increased with additional pay, which is also specified in the Labor Code of the Russian Federation.

The reasons why an employee may be dismissed can be very different. Moreover, at the moment when you pick up the documents, you must receive compensation and all other payments that are due to you.

Types of such payments include:

• Salary for days worked in the month during which you quit;
• Compensation due to you for vacation or vacations that you did not use in the year of dismissal or for years of work earlier;
• Compensations in certain legislative cases, but remember that all types of compensation that the employer is obliged to pay you are regulated by the laws of the Labor Code of the Russian Federation, Article 127.

Practice shows that the payment of vacation pay upon dismissal is the most controversial and complex procedure.

Formula that can be used to calculate the days and amount of compensation

Every year, every employer is obliged to provide its employee with leave - provision in the Labor Code of the Russian Federation, Article 114.

For the year that an employee has worked, he is entitled to one paid vacation, the amount of which is 28 days. This is the number of days that is the amount of compensation paid when calculating the employee.

Calculation of calendar and working days or paid vacation balance

For example, an employee works for 7 months and 25 days.

The number of calendar days that you must be paid is calculated using a certain formula.

To calculate using the formula, we need the following data:

• The duration of standard annual leave is 28 days.
• The number of months in a year is 12.
• The number of months you did not work relative to the whole year is -8.

We calculate the number of calendar days: 28: 12 *8 = 18.66. We use simple arithmetic rules in our calculations. At the same time, we round the days of an incomplete month to a full one and, conversely, discard the unnecessary ones.

To calculate using the working days formula, we need the following data:

• How many months have you worked in the organization?
• The indicator is 2 working days.
• Let us denote how many vacation days were used while working in the organization as “N”.

We calculate the number of working days: 8 *2 – N = vacation days in working days.

How to calculate the amount of penalties due to non-payment of compensation upon dismissal

Penalties are considered to be penalties that accumulate from the employer every day in the absence of accrual of the required funds to employees. The size of such sanctions is 1/150 of the Central Bank refinancing rate, which in 2021 reached 7.75%.

EXAMPLE: Citizen A. resigned from the company on May 15, 2021, respectively, earnings and compensation for unused days of the vacation period should have been accrued on the same day. The head of the company neglected this requirement of the Labor Code of the Russian Federation and accrued the due funds only on May 29, 2021. The total amount of finance upon dismissal is 50,000 rubles. What is the amount of the penalty?

1. To calculate the amount of the penalty, the following formula is used:

RN = SD * DP * 1/150 * 7.75%, where
RN is the amount of the penalty;

SD - the amount of debt owed to the resigned employee;

DP – number of days of payment delay.

1. We get: RN = 50,000 * 14 * 1/150 * 0.0775 = 361.7 ruble

When should vacation pay be paid?

According to Article 140 of the Labor Code of the Russian Federation, payment of all amounts due to the employee is made on the day the employee is dismissed.

If the employee was absent from work on the day of dismissal, for example, was on a business trip, or was sick, payments must be made no later than the day following the day the employee’s request for payment was submitted. It turns out that if on the day of dismissal you were absent from work and the employer did not have the opportunity to give you a final payment, then if, for example, you came on September 22 and demanded a payment, it should be given to you no later than September 23, that is, the day following the day presenting a claim.

And if you were at work on the day of dismissal, you should be given a paycheck on the same day.

If an employee disputes the amount due to him upon dismissal, does not agree with its amount and a dispute arose for this reason, then the employer pays the amount not disputed by him, that is, the employer will pay the amount that he considers correct. And if the employee does not agree with the amount paid to him, then he has the right to go to court. How to do this is written in the next part of the article!

How to defend your rights, how to sue your employer and within what time frame?

To begin with, I would like to tell you what responsibility does an employer have if an employee’s rights to receive a payment are violated?

If, upon dismissal, the employer violates the established deadlines for the payment of wages, compensation for unused vacation and other payments due to the employee, then the employer pays such amounts with interest (monetary compensation). Interest will be paid for each day of delay, starting from the day when, by law, such payments should have been made to the employee. The amount of interest payable must be at least 1/150 of the key rate of the Central Bank of the Russian Federation in force at that time, of the amounts unpaid on time for each day of delay. Let's take a closer look!

Let's take the numbers as an example and calculate for clarity:

The key rate of the Central Bank of the Russian Federation is 10%

One hundred and fiftieth of the key rate of the Central Bank of the Russian Federation – 10/100/150 = 0.00066

Payment debt (how much the employer owes) - 35,000 rubles.

Days overdue – 28

Interest = 35,000 (debt amount) * 10 (Central Bank key rate) / 100/150 (one hundred and fiftieth) * 28 (days overdue) = 653.5 rubles.

We received 653 rubles for 28 days of delay. 30 kopecks

The amount is not large, but if it is collected in court, it will take longer and longer and the amount of interest may be 2 or 3 times higher.

Moreover, the obligation to pay such interest arises on the employer, regardless of whether he is to blame for the delay or not.

Indeed, on the basis of paragraph 55 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2, the court was considering a dispute arising on the basis of the employer’s refusal to pay interest to the employee for violation of the deadline for payment of wages, vacation pay, dismissal payments and other payments that are due by law employee, then it is necessary to take into account that, on the basis of Article 236 of the Labor Code of the Russian Federation, the court has every right to satisfy the claim, regardless of whether the employer is at fault for the delay in payments or not.

This must be taken into account when filing a lawsuit against an employer. Go ahead!

The Labor Code does not contain provisions on mandatory pre-trial settlement of disputes, so we do not send any claims to the employer, but immediately go to court.

You need to draw up a statement of claim against the employer and refer to the fact that the employer violated Part 1 of Article 127 of the Labor Code of the Russian Federation and Part 1 of Article 140 of the Labor Code of the Russian Federation.

How long do you have to sue your employer?

You have exactly 1 year to sue your employer. According to Part 2 of Article 392 of the Labor Code of the Russian Federation, to resolve an individual labor dispute about non-payment or incomplete payment of wages and other payments due upon dismissal (including vacation pay), an employee has the right to go to court within 1 year from the moment when the employer should have legally required to make these payments.

So you have exactly 1 year to go to court and recover money from your employer.

There is nothing complicated in drawing up a statement of claim, there are a lot of examples, you can find them yourself. And if it’s really difficult or you don’t have time, then contact a lawyer in your city, they will definitely help you.

Procedure for contacting the labor inspectorate

In order for an employee to have the opportunity to defend his own rights and interests infringed by the employer, there are several government agencies in our country where you can file a formal complaint against your boss. One of these government agencies is the Labor Inspectorate. To solve the problem that has arisen, the worker must:

• Submit a written complaint against your employer, indicating in it: the period of work in the company, personal data, and information about the boss, as well as the actual reason for the dissatisfaction: non-payment of vacation pay;
• Submit the document to government representatives. institutions through a personal visit to the Inspectorate or through the official website;
• Based on the submitted complaint, representatives of the Labor Inspectorate initiate an inspection at the enterprise, during which the head of the company is obliged to provide access to all available documentation;
• Based on the results of the inspection, a conclusion is made about existing violations. The head of the organization receives a corresponding written order, which contains specific deadlines, after which the violations must be eliminated.

The disadvantage of this method of influencing the employer is that he may not agree with the identified shortcomings specified in the order and refuse to eliminate them. The maximum penalty for the official, in this case, will be the imposition of a fine.