It is the employer's responsibility to calculate compensation for unused vacation upon dismissal. However, counting errors are not uncommon. Therefore, each employee must be able to do this independently in order to be able to double-check the amounts paid to him and, if necessary, challenge the correctness of the calculations made. This article will talk about how to correctly calculate compensation for vacation that an employee did not have time to take off before being fired.
Vacation compensation
Upon dismissal, each employee must be paid compensation for all unspent vacation days, including for previous years. Such compensation can be replaced, at the request of the employee, by his opportunity to take off the remaining days of vacation with subsequent dismissal. Such a replacement is made at the request of the employee with the consent of the employer.
Natalia
Labor expert
It is important to know! Vacation compensation is due to every employee, regardless of the reason for his dismissal.
By default, the employee is provided with compensation. In order to take the remaining days of vacation before dismissal, the employee must submit an application to the employer with a request to provide him with such an opportunity.
Payments upon dismissal from the Ministry of Internal Affairs
Taking into account part 2 of article 3 of Law No. 342-FZ (providing for the application of labor legislation in cases not regulated by the regulatory legal acts of the Russian Federation specified in part 1 of this article to legal relations related to service in internal affairs bodies) when making decisions on the issue When employees receive compensation for additional vacations not used during the year of dismissal, they should be guided by the requirements of Article 127 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), according to which, upon dismissal, the employee is paid monetary compensation for all unused vacations.
How is the calculation made?
In order to calculate compensation, you need to know two indicators:
- Number of days of vacation remaining;
- Average daily earnings.
The calculation is carried out using the formula: compensation = number of days of unused vacation x average daily earnings
For an organization's accountant, making calculations is not difficult, since currently all these calculations are carried out automatically in special computer programs.
An employee can independently calculate the compensation due to him in two ways:
- Independent calculation;
- Calculation using an online calculator.
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Main types of vacations
Before paying attention to the required compensation for unused vacation, it is worth considering what vacation options employees of such an important government structure can count on. Each employee of the Ministry of Internal Affairs has the legal right to submit an official report for additional or main leave .
Important! The main leave, which is granted once a year, is regulated by a special schedule.
Payment for this rest period is carried out from budget funds.
Duration of main vacation
Unlike employees of various enterprises, those who work in the Ministry of Internal Affairs must rest not the standard 28, but 30 days. Calendar days are taken into account. Weekends and holidays are not taken into account. Each day of entitlement leave is paid by the department in which the person works.
The vacation date for each employee is approved by the head of the department strictly on an individual basis. The dates of departure and return are reflected in a special vacation schedule, which is drawn up a year in advance.
Expert opinion
An employee holding a responsible position must go on vacation no later than 10 days after the official date of departure. If a person has not used a certain part of the allotted vacation, it is transferred to the future. At the same time, you need to have time to rest exclusively in the first quarter of the new year.
Chief employee of the HR department of Vladivostok, Sergey Vladimirovich Romanov.
Calculator for calculating compensation online in 2020
Currently, many websites offer the opportunity to calculate the amounts due to an employee using online calculators. The calculation of compensation for vacation is no exception.
The calculator for the calculation consists of certain form columns that require filling out.
In order to receive the settlement amount, you must indicate:
- Hiring date;
- Date of dismissal;
- The number of required vacation days per year;
- Number of vacation days used for the entire period;
- Average daily earnings of an employee.
After all fields of the form have been filled out, the user must click on the “Calculate” or “Calculate” button.
The program then produces a result containing:
- The number of days for which the employee must be paid compensation;
- Amount of compensation.
Natalia
Labor expert
It is important to know! The number of vacation days entitled to an employee includes not only the days of the main one, but also the days of additional vacation.
Relationship between organization and UII
As you already understand, assigning correctional work to your employee involves you in a relationship with the inspectorate. In connection with this, this inspection will come to you with checks.
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The frequency of inspections depends on the term of correctional labor established by the sentence
- period less than 6 months - once during this period;
- longer period - at least once every 6 months.
UII employees will check the correctness of deductions and the reliability of the information you provided (reasons for absence from work, duration of vacation, etc. The tax authorities may also be involved in the verification
ATTENTION
The Criminal Executive Inspectorate is the only body with which you communicate in connection with the sentencing of your employee to correctional labor. There is no need to write requests to the court or send any information there.
Note that you also have such obscure responsibilities as carrying out educational work with the convicted person and monitoring his behavior in production. For this, you can draw up memos on a monthly basis. Write in them, for example, that the employee conscientiously fulfills his job duties, maintains discipline, participates in public life, etc. If necessary, present these documents to the inspectorate.
Based on the results of the inspection, the UII draws up a report. If serious violations are detected on the part of the organization, the materials may be sent to the prosecutor's office. Failure to withhold interest (which we will talk about at, as well as failure to fulfill other obligations to the UII (which we described above) may be considered as failure to comply with a court verdict. For malicious violations, the director of the organization may be subject to prosecution to criminal liability and punishment
- a fine of up to 200 thousand rubles. or in the amount of salary for a period of up to 18 months;
- deprivation of the right to hold certain positions or engage in certain activities for a period of up to 5 years;
- compulsory work for up to 480 hours;
- forced labor for up to 2 years;
- arrest for up to 6 months;
- imprisonment for up to 2 years.
The concept of “maliciousness” is not deciphered in the law, but it usually means repeated violations, ignoring written warnings from the police department, etc. One-time mistakes are unlikely to lead to such serious consequences. However, it is better to avoid them.
There is no liability for the individual entrepreneur.
According to the law, serving correctional labor is possible only at the main place of work, that is, where the work book is located. If the convicted person works for you part-time, this is not a problem. But if he is listed as a part-time worker, then he cannot serve correctional labor with you, even if he has no other main job. According to the law, the UII must, in this case, send the citizen to work in one of the organizations in the area of his place of residence, included by the local government in a special list
But if your management wants to keep this employee, there is a way out. It is necessary to transfer him to his main job before he is registered with the Penitentiary Penitentiary (this happens after the sentence comes into force, when the inspectorate receives documents from In this case, the inspectorate will agree with the authorities on the issue of having the employee serve his sentence at
Questions and answers on the topic
Self-calculation
To make your own calculation, you will need to first calculate the following indicators:
- Number of days of unspent vacation;
- Average daily earnings.
The number of days of unspent vacation is calculated using the formula:
((Number of months worked x number of days of annual leave) / 12) – number of days that the employee managed to take off
Example:
The employee worked for the organization for 9 months. According to his employment contract, he is entitled to 28 days of annual paid leave. By the time he was fired, he had taken 4 days off.
Number of days of unspent vacation = ((9 x 28) / 12) – 4 = 17
Calculating average daily earnings is more difficult, since this requires taking into account many different nuances.
In general, the formula for calculation is as follows: average daily earnings = total payments to the employee for the 12 months preceding dismissal / number of days worked during the same period.
Family leave for employees of the Ministry of Internal Affairs
An employee of the Ministry of Internal Affairs has the right to submit a report before going on basic and additional official leave. Basic annual leave is provided according to the schedule and paid from the department's budget. Additional vacations are of the following types:
- for family reasons;
- for length of service;
- upon retirement;
- provided to combat participants;
- newborn care;
- during pregnancy;
- to complete the session;
- creative;
- without saving.
If an employee of the Ministry of Internal Affairs wishes to go on leave for family reasons, he must explain the reasons for going on vacation to his superiors so that management can determine the duration of the vacation. In any case, current legislation prohibits approval of the duration of such leave for more than 10 days, including weekends.
Calculation of compensation for maternity leave, as well as after maternity leave
If the billing period falls while the employee is on maternity leave, then the law allows for this period to be replaced by the twelve-month period preceding the employee’s maternity leave.
Example:
The employee has been on maternity leave since 09/01/16. until 08/31/19
09/01/19 The employee was fired voluntarily.
The 12-month period fell entirely on maternity leave, which means it needs to be replaced by the same period preceding the month of maternity leave, that is, from 08/01/2015. until 08/31/2016
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Leave upon retirement
The person being dismissed puts his signature on the order.
- HR department employees make entries in the work book and personal file of the dismissed person, where the grounds for termination of the contract must be indicated.
- On the day of dismissal, the final payment is made to the employee, and a copy of the order, work record book and military ID are issued.
- Within two weeks after termination of the contract, the dismissed employee applies to the military registration and enlistment office for military registration.
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If a dismissal from the police is made due to a limited health condition, the dismissed employee at the military registration and enlistment office is enlisted in the reserve if his age does not exceed the restrictions established by law.
Terms of payment of compensation
It is very important to know the timing of payment of compensation. By law, management is required to make final payments to an employee on his last working day. This calculation should also include compensation for leave, if the employee did not write an application for leave with subsequent dismissal in exchange for compensation.
If an employee is absent from work for any reason on his last day of work, payment must be made to him:
- If possible, by transferring funds to a bank account;
- When issuing money in cash, no later than the next day after the employee’s request.
Relationship between organization and employee
On the one hand, a convicted employee is no different from the rest. He works the same way as before, and you give him the same codes on his time sheet as a regular employee. On the other hand, there are some peculiarities.
Providing vacations
If, during the period of correctional labor, an employee is going on annual basic paid leave, then he is entitled to such leave in a reduced amount - 18 working days, as opposed to the usual 28 calendar days. Apparently, to fix it faster. In this case, you must agree on the provision of leave with the criminal-executive inspection. You will learn the address and details of the correctional institution from the notice sent to the inspection
The law does not determine exactly how to coordinate the provision of leave with the Institution. Therefore, simply inform the inspectorate in writing that you are going to grant the employee another vacation during such and such a period, and receive a response letter stating that there are no objections. This must be done before the employee goes on vacation. It is better - immediately after the vacation schedule is approved, as well as after it is changed (if the vacation dates of the convicted employee were postponed).
When taking a vacation of 18 working days, working days should be converted into calendar days according to the calendar of a six-day working week.
It is important to understand that sentencing an employee to correctional labor does not deprive him of the right to regular leave, but simply limits the number of days that can be provided to him during the period of punishment. This was confirmed to us by Rostrud.
FROM AUTHENTIC SOURCES
“As a general rule, annual basic paid leave is provided to employees in the amount of 28 calendar days. However, during the period of serving correctional labor, such leave can be granted to a convicted person only for 18 working days. At the same time, the employee does not lose the right to days not used in connection with serving correctional labor. They can be provided to him at the end of the period of corrective labor or taken into account when paying monetary compensation for unused vacation upon dismissal.
Corrective labor is assigned for a period of no more than Therefore, at the end of the term of serving the sentence (about which the Penitentiary Inspectorate will inform you with a message in the prescribed form, the employee can be granted the rest of the leave. Thus, you act as if he were an ordinary employee who, in his own way, If desired, I took out the vacation not in full, but in part.
WE TELL THE EMPLOYEE
The time during which the convicted person did not work, including due to being on vacation, is not counted towards the term of serving correctional labor.
Other types of leave are provided to convicted persons on a general basis. So, you do not need to coordinate with the inspection:
- additional annual leave - for work in hazardous working conditions, length of service, irregular working hours, etc.;
- study leave;
- leave without pay;
- maternity leave;
- Holiday to care for the child.
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The period of corrective labor is not excluded from the vacation period
Disability
Convicts have the right to take sick leave, as well as take out maternity and child care leaves on a general basis. There is no need to inform the Penitentiary Inspectorate about this - everything will be visible from the calculation information you provide (see.
An important point - when calculating average earnings, on the basis of which temporary disability benefits are calculated, you take payments to the employee in full, that is, deductions by court verdict are not taken into account
Transfer to another job
It is possible to transfer a “correcting” employee to another job subject to prior notification of the Institution of Inspectorate. As we can see, there is no question of obtaining consent here; it is enough to simply send a letter. It seems that it is better to inform about any transfers - both permanent and temporary.
The word “preliminarily” suggests that the UII must be reported in advance. But this is not always possible. For example, labor legislation allows the temporary transfer of an employee (for a period of up to 1 month) to another job in the event of a production accident, accident, downtime and such a transfer is issued urgently. Therefore, in such a situation, you will have to send a notification to the UII and issue an order for transfer on the same day - there is no other way out. In addition, there are still no specific deadlines for informing, which was confirmed to us by the Federal Penitentiary Service.
FROM AUTHENTIC SOURCES
“ The deadline for sending a preliminary notification to the employer about the transfer of a convicted employee to another position to another position is not established by law
Incentives and penalties
You also need to notify the UII in case of
- employee incentives (bonuses, certificates and
- punishment of the employee (for example, reprimand or reprimand
Disciplinary punishment can also be the dismissal of an employee, but we will talk about this below;
- employee evasion from serving a sentence (absenteeism or showing up at work in a state of alcohol or other intoxication
There is no special form for this; just send a letter to the UII signed by the manager.
Dismissal
Dismissal of a convicted employee is, in principle, permitted for any reason. But the coordination of this issue with the UII occurs differently depending on the reason for the termination of the employment relationship:
- the employee is fired on the initiative of the employer (for example, for absenteeism) or for any other reason other than his own desire, only one thing is required from the employer - written preliminary notification to the management office about the upcoming dismissal. If possible, notify the inspectorate early, although there are no deadlines here either;
- the employee wants to resign of his own free will, he must first obtain written permission from the UII in accordance with the established form. Without this permission, he has no right to resign.
Formally, permission is required by the employee himself, and not by the organization. However, Rostrud believes that the organization cannot fire a convicted employee without such permission.
FROM AUTHENTIC SOURCES
“ As follows from the form approved by Appendix No. 33 to the Instructions, a copy of the permission (refusal) of the Penitentiary Inspectorate to dismiss a person sentenced to correctional labor at his own request is sent to the personnel department of the organization where he works. Consequently, the employer has the right to issue a dismissal order only after receiving a copy of such permission
SHKLOVETS Ivan Ivanovich Rostrud
The Federal Penitentiary Service adheres to a similar opinion.
FROM AUTHENTIC SOURCES
“Dismissal of a convicted person at his own request without written permission from the Penal Inspectorate will constitute a violation by the organization of the provisions of Part 1 of Art. 43 of the Penal Code of the Russian Federation, which entails liability in accordance with the law
Press Bureau of the Federal Penitentiary Service of Russia
At the same time, from the point of view of the Labor Code, the employer has no grounds for refusing to dismiss an employee at his own request. Formally, you do not have the right to detain an employee for more than 2 weeks
What if an employee demands a calculation, but you do not have a copy of the UII permit? First, ask the employee, maybe he just forgot that he needs to receive it. If he does not want to do this, inform the UII, let them convince their ward. After all, dismissal at will without permission is a violation of the conditions of serving a sentence, for which the convicted person can be punished
Employment history
At the end of the period of correctional labor, the normative act requires an entry to be made in the work book about the non-inclusion of this period in the continuous labor period. In our opinion, such a requirement contradicts federal legislation, since the current Penal Code of the Russian Federation does not regulate the issues of calculating the length of service of citizens serving a sentence in the form of correctional labor. In other federal laws in force today, there is also no requirement to exclude the period of serving correctional labor from continuous service.
The norm of clause 2.19 of the old Instruction on the procedure for maintaining labor records on the exclusion of the time of serving a sentence in the form of correctional labor from continuous work experience was based on a similar norm of Art. 94 of the Correctional Labor Code of the RSFSR (lost force from 07/01/97).
And the very concept of continuous service, as we know, has long been outdated. Currently, it only affects the provision of individual benefits, for example, the duration of the main vacation for a rescuer, the provision of “northern” benefits and compensation. For pensions and sick leave, the insurance period matters - when calculating it, corrective labor is taken into account as a normal period of work. Nevertheless, the representative of Rostrud , to whom we turned for clarification, insists on the need to make such an entry.
FROM AUTHENTIC SOURCES
“ In the work book of an employee who has served a sentence of correctional labor, it is necessary to make an entry indicating that the period of correctional labor is not included in the continuous work experience, since this is a requirement of a regulatory legal act containing labor rights standards
SHKLOVETS Ivan Ivanovich Rostrud
The entry is made on the basis of an order that must be issued by the employer. What should be written in such an order?
FROM AUTHENTIC SOURCES
“ At the end of the period of correctional labor, the employer issues an order to exclude the period of serving correctional labor from the employee’s continuous work experience and to instruct the employee responsible for maintaining work books to make such an entry in the work book.
The order is issued in any form, the basis of the order is the sentence
SHKLOVETS Ivan Ivanovich Rostrud
Here is a sample of filling out a work book.
Note that taking into account continuous length of service may be provided for by a collective agreement or local regulations for the internal purposes of the organization - for example, to provide additional vacations, additional payments and bonuses. In this case, can the organization decide for itself whether to exclude the period of correctional work or not? Rostrud believes not.
FROM AUTHENTIC SOURCES
“ Local regulations adopted by employers must comply with labor legislation and other regulations containing norms of labor rights. The exclusion of the period of corrective labor from continuous work experience is provided for in the Rules for maintaining and storing labor records. Thus, if an employer establishes any benefits for continuous work experience, he does not have the right to include a period of corrective labor in it
SHKLOVETS Ivan Ivanovich Rostrud
If in your organization something depends on continuous service, then reflect the exclusion of the period of corrective labor in paragraph 8 of the employee’s personal card (unified form
What to do if the employer has calculated the compensation incorrectly
Any accountant can make a mistake when making calculations. But what should an employee do if he discovers that he has been charged an amount greater or less than what he is entitled to by law?
In this situation, it is recommended to immediately contact the employer with a written statement containing a request to re-calculate due to the errors made. The employee can also attach a calculation he made himself.
If the settlement dispute is not resolved between the employee and the employer amicably, the employee has the right to challenge the calculation made by the employer in court or file a complaint with the labor inspectorate.
