How to correctly calculate compensation for unused vacations upon dismissal after maternity leave?

At your own request

If a worker decides to leave the company, she has the right to say so at any time . But do not forget about the two-week work rule.

When the maternity leave is already closed, you will have to work the required fourteen days. If you submit an application while still on vacation, you will not need to work them out . You can write an application directly at work, or you can send it by registered mail. In the second case, you should come to work for documents after about 3 weeks.

Here you can learn how to correctly write a statement of your own free will.

Upon liquidation of an enterprise

If the enterprise completely ceases to exist, any personnel can be dismissed, no matter what category of workers they belong to. Including pregnant women and those on vacation with a child under one and a half years old.

Typically the situation will look like this:

• meeting of shareholders, making a decision on bankruptcy;
• hiring an arbitration manager;
• employee notification, negotiations;
• dismissal order, order to the accounting department regarding accruals;
• handing over documents and money to the dismissed person.

The outgoing subordinate will have to pay a lot - severance pay, payment along with vacation pay, and even cash payments until the son or daughter reaches the age of one and a half years. The list is impressive, it is possible to shorten it. This is the parties’ own desire or agreement (Article 77 of the Labor Code).

And it is this option that employers most often insist on if the prospect of bankruptcy has become quite real. Of course, you can accept the offer, but only of your own free will and aware of all the legal consequences of such a step .

The situation when a subordinate leaves immediately after maternity leave without working a single day deserves special attention. Here the question arises - how can she pay compensation for her vacation? In accordance with Regulation No. 922 on the calculation of average earnings and Art. 127 of the Labor Code, the basis is the woman’s actual earnings and the time she managed to work before going on maternity leave.

Compensation for unused leave before maternity leave

The only possible way to receive compensation for unused vacation is dismissal after leaving maternity leave. In this case, the employer does not have the right to refuse payment to the employee and will require two applications from her: directly for maternity leave with subsequent dismissal and for payment of compensation for the unspent rest period. 3 days before dismissal, the woman will receive financial compensation.

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Is it possible to

According to the law, it is not the employer’s responsibility to compensate employees for unused vacation, which also applies to pregnant women. This leaves two options for receiving a cash payment:

1. Agree with the employer on these payments, however, any decision made by the head of the enterprise cannot be challenged due to the fact that compensation in this case is his right;
2. Leave work after maternity leave.

In the event of subsequent dismissal, the woman receives the following series of monetary payments:

1. Salary for the period worked;
2. Compensation for unspent vacation period;
3. Weekend benefits, if applicable.

The necessary conditions

In order to receive compensation for unused vacation, certain conditions must be met, each of which has its own restrictions and requirements. Let's highlight two main ones:

1. The employee submits an application for maternity leave, simultaneously informing the employer that after this leave she will quit. Then the woman has the right to apply for compensation for unused vacation. In this case, the employer has no right to refuse;
2. The employee submits an application for maternity leave, and also asks the head of the organization to compensate for unused leave, without claiming that after the maternity leave she will leave her workplace. In this case, the employer decides for himself whether to make payments or not - this obligation is not regulated by law.

Payment amount

Three days before dismissal, the employee must be paid compensation for all unused vacation periods, including additional time for certain categories of citizens.

Expert opinion

Lebedev Sergey Fedorovich

Practitioner lawyer with 7 years of experience. Specialization: civil law. Extensive experience in defense in court.

To calculate compensation for an unused vacation period, the accountant must calculate two important points: the number of days of unused annual leave, the average daily income.

The average daily income level is calculated using the following formula:

OT annual/12/29.3, where:

• OT annual is the salary for 12 months;
• 12 - number of months in a year;
• 29.3 is the coefficient for calculating the average monthly number of days in the calendar, regulated by law (Article 139 of the Labor Code of the Russian Federation).

Salary does not include all payments received by an employee. Thus, the following funds are not taken into account:

1. Performing job duties while maintaining salary (business trip);
2. Compensation for sick leave.

If a pregnant woman has accumulated unused vacation days over several years, they are added up.

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For the final calculation of compensation, it is necessary to calculate using the following formula:

• Average salary per day * total number of unused vacation days.

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Registration procedure

Before going on maternity leave, every employed woman must complete the following algorithm of actions:

1. Register for pregnancy at the antenatal clinic, which is located at the woman’s place of residence;
2. Receive an appropriate sick leave certificate based on an examination conducted by a specialist;
3. Presentation of the received sick leave certificate to the employer himself, and subsequently transfer to the accounting department for calculating maternity leave benefits;
4. Completing and submitting an application requesting maternity leave, as well as the compensation required in this case;
5. At the same time, submitting an application for unused vacation.

In the last paragraph, the employer cannot refuse, since this is contrary to the law. It is the employer's responsibility to provide unused vacation days in addition to maternity leave.

Advice! If an employee wants to quit immediately after taking maternity leave, then she also submits an application for compensation for the unused rest period.

The application must indicate:

1. Days of unused vacation period;
2. End of maternity leave (1.5 or 3 years).

Thus, unused leave for a pregnant woman before going on maternity leave can only be compensated in one case: if she submits a letter of resignation immediately after the maternity period. In other cases, no payments are due unless the employer himself decides to make such payments.

We describe typical ways to resolve legal issues, but each case is unique and requires individual legal assistance.

To quickly resolve your problem, we recommend contacting qualified lawyers on our website.

Staff reduction

If the rate at which a woman worked is subject to reduction during the period of maternity leave, the employer is obliged to offer alternative work. This could be 2-3 vacancies from related departments or work with similar functions.

To agree or not is a personal matter for each employee.

According to current standards, while a woman devotes herself to motherhood on legal leave, she retains her previous position and salary (Article 256 of the Labor Code). When she leaves, she returns to her job. If during this time a metamorphosis has occurred in the organization, they may offer a similar job, but with the same functionality and with the same earnings.

One thing we can advise in such a situation is not to sign any papers offered by the employer without receiving qualified legal advice.

By signing the consent, the woman deprives herself of the opportunity to make any claims in this regard, since this transition is regarded as her own desire.

Is it possible to receive compensation for leave during maternity leave?

“I'm going to go on maternity leave. In this case, the next vacation will be unused. Can I get compensation for it? And if so, how should you proceed? What documents should I provide? Elena Evgenievna"

— In accordance with the provisions of Article 260 of the Labor Code of the Russian Federation (LC RF), which provides guarantees for women in connection with pregnancy and childbirth when establishing the order of annual paid leave, before maternity leave or immediately after it, or at the end of maternity leave As a child, a woman is granted annual paid leave at her request, regardless of her length of service with a given employer. Thus, the above article provides for the possibility of using the next leave ahead of schedule, adding it before or after maternity leave, or even at the end of parental leave, regardless of the length of service in this organization. Moreover, if a woman has unused leave for the past year, then, upon her application, both the leave for the current year and the unused leave for the previous year must be added to the maternity leave.

— That is, a woman has the right to another vacation in any case?

— Regardless of whether the right to annual basic paid leave has arisen or whether this right arises while a woman is on maternity leave, the woman has the right to use annual basic paid leave ahead of schedule.

If maternity leave coincides with a woman’s annual leave, then annual leave must be granted upon her application

at the end of maternity leave or postponed to another period specified by her.

— Is it possible to receive monetary compensation for vacation?

— According to the provisions of Article 126 of the Labor Code of the Russian Federation, which regulates the procedure for replacing annual paid leave with monetary compensation, it is not allowed to replace annual basic paid leave and annual additional paid leave for pregnant women with monetary compensation (with the exception of payment of monetary compensation for unused leave upon dismissal).

It should be noted that, in accordance with the provisions of labor legislation, an employee can receive compensation for unused vacation if the duration of his vacation is more than 28 calendar days. In this case, according to Article 126 of the Labor Code of the Russian Federation, part of the annual paid leave exceeding 28 calendar days, upon the written application of the employee, can be replaced by monetary compensation. It should be noted that it is only the right, and not the obligation, on the part of the employer to replace part of the employee’s vacation with monetary compensation.

This is important to know: Providing leave to a single mother

In this regard, we can conclude that replacing vacation with monetary compensation is possible if the employer agrees to this, and only in part exceeding 28 calendar days of annual paid leave. And for certain categories of citizens, such as pregnant women, there is generally a restriction on the possibility of replacing annual basic paid leave and annual additional paid leave with monetary compensation.

Based on the above, answering the question you asked, we can conclude that the annual basic paid leave and annual additional paid leave that you have not used cannot be replaced by monetary compensation due to the fact that Article 126 of the Labor Code of the Russian Federation provides for a ban on the replacement of monetary compensation for leave for pregnant women. At the same time, you are given the opportunity, in accordance with the provisions of labor legislation, before or immediately after maternity leave or at the end of parental leave, if you wish, to take annual paid leave, regardless of your length of service with the employer.

Maternity rate

There are different situations in business, including when a woman who gets a so-called “maternity rate” is . You can terminate your employment contract with her if:

1. bankruptcy of the institution;
2. exit of the main employee (Article 79 of the Labor Code);
3. expiration of the employment contract.

If the duration of the employment contract has not expired at the time the replacement goes on vacation, and the main employee has not yet left, then a new - second - temporary employee is hired. The conditions are the same: the end date of work coincides with the day the previous employee left .

It may also be that the main employee returns, the deputy cannot yet leave for another position due to health, or these positions simply do not exist. In this case, extension of a temporary employment contract is possible upon a special application, which must be accompanied by a medical certificate confirming the fact of pregnancy .

A temporary worker holding a maternity position can be laid off under Art. 81 Labor Code of the Russian Federation.

Watch the video about leaving maternity leave:

At the initiative of the employer

If the director himself insists on terminating cooperation, you should pay attention to the following factors:

• whether the period approved by law for release from work has come to an end or the woman officially continues to be in it;
• How old is the son of the woman being fired?

If the maternity leave is closed, the employee’s son or daughter is already three years old, then the employer company can terminate the contract with her at absolutely any time on any legal grounds.

Such a woman is no different from any other employee. And if the boss has serious reasons for a unilateral break in cooperation , for example, complaints about labor discipline, then it all depends on whether these reasons are real.

If the reasons are not legal, this is a reason to contact the labor inspectorate or the prosecutor's office (if we are talking about obvious signs of fraud).

It's a completely different matter if the child is under three years old . Then the possibilities of influencing the subordinate are sharply reduced. It is allowed to fire her if:

• the fixed-term employment contract expires;
• the question arose about the bankruptcy of the company and the complete cessation of its activities;
• both sides agree.

Bankruptcy of a company means in this case that it completely ceases its activities and there will be a corresponding entry in the registers of the Unified State Register of Legal Entities. The same applies to a company branch.

But if the head office decides to close one branch and open another , we are not talking about cessation of activity. In this case, it is necessary to transfer the maternity leaver to another branch; she cannot be fired.

In this case, the dismissed person must be offered other positions in accordance with her qualifications , and if none suits her, the question of severing cooperation can be raised.

If a woman quits immediately without going to work

If an employee quits immediately after the certificate of incapacity for work is closed and does not return to work after maternity leave, the calculation of unused vacation days is carried out as follows:

• average earnings are determined taking into account the total amount accrued to the employee for the last year;
• Average daily earnings are calculated using the formula: divide the amount of earnings by 12 and divide the resulting result by 29.4;
• Knowing the duration of vacation in days and the cost of a working day, you can determine the amount of vacation pay that the employee is entitled to.

In accordance with current legislation, the employer must provide the employee with paid leave before going on maternity leave, the duration of which is 28 calendar days. In other words, leave is granted in full and in this case it does not matter whether the billing period for receiving leave has been worked out or not.

When an employee leaves her position immediately after maternity leave, she must return the excess vacation pay for vacation days that were not worked.

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