Compensation for unused vacation upon dismissal during a probationary period

Grounds for dismissal during probationary period

The employer has the right to accept an employee on a probationary period on the basis of Art. 70 of the Labor Code of the Russian Federation, which must be stated in the employment contract or in the additional agreement, which is drawn up to the contract before the start of work duties.

The test can be established for all categories of workers with the exception of the following persons:

1. elected through competition for a position or for an elective position
2. pregnant women and women with children under 1.5 years old
3. minors
4. within 1 year from the date of receipt of secondary vocational education or higher education in the relevant specialty
5. invited by transfer by agreement of employers
6. if the employment contract is for a period of up to 2 months
7. other cases provided for by internal regulations of the organization

The employer has the right to establish a probationary period of three months for an old-age pensioner.

COMPUTER ENGINEERING LLC E.V. Dmitrienko

How is compensation calculated upon dismissal?

An applicant for a position who is fired during the probationary period receives a certain compensation: the period of his income, the number of unused vacation days, and the amount of the average salary are taken into account.

Calculation of compensation for vacation days is as follows - you should multiply the amount of the employee’s average daily income by the number of days of unused vacation for which the employer is obliged to make payments.

Keep in mind! The payment of amounts due to the employee, including compensation, is made on the day he resigns (Article 140 of the Code).

The duration of the calculation period for the most part covers one year. During the calculations, the concept of a calendar month is used - the period from 1 to 30 (31) days of the corresponding month (inclusive).

Those dismissed are entitled to the following types of payments: wages, bonuses, remunerations, additional payments that are related to working conditions and working conditions. Social payments are not taken into account.

When a person is fired after completing his probationary period, the time he worked is calculated as standard. The same applies to vacation days that the employee did not have time to use.

For the month actually worked, the dismissed employee is entitled to an amount equal to compensation for 2.33 days of employer-paid leave.

If an employee worked only 15 days in a month, then when calculating compensation, the full period is considered - that is, a month. When two weeks or less are worked per month, no compensation is made for that month.

For your information! If the employee has the right to provide him with additional vacation, the number of compensated days is subject to a corresponding increase.

For vacation pay, the average employee income received per day is calculated on a general basis, while the last month of work will be included in the calculation only if dismissed on the last day. (Letter of the Ministry of Labor dated July 22, 2010, N 2184-6-1).

Example

For greater clarity, let's look at how payments are calculated during the dismissal of an employee using an example.

• the salary is 32 thousand rubles;
• The dismissal of an employee occurs during the probationary period. He got a job on March 1, his dismissal date was April 20. For the month of March, salaries were paid in full;
• in April, the employee worked 16 days, while according to the organization’s calendar, workers were only 20 days;
• VP will not be paid by the employer (not required).

Test period for hiring

The probationary period may not exceed:

• 3 months
• 6 months – for management positions
• 2 weeks – with an employment contract term of 2-6 months

This probationary period should not take into account periods of actual absence from work (for example, a period of temporary disability, etc.).

If the employee, before the expiration of such a period, decided that such work is not suitable for him, then his right is to submit an application for resignation of his own free will, which will not be qualified as dismissal on the initiative of the employer.

How is the remaining vacation compensated?

In accordance with labor legislation (Article 115 of the Code), the standard duration of vacation is 28 days (calendar).

Some organizations also provide for the provision of additional leaves, which are also paid by the employer, for example, for working on an irregular schedule.

When you are leaving work while on a probationary period, it becomes necessary to count vacation days for which compensation is due.

To obtain the required value, it is necessary to subtract the actual vacation days taken from the total number of vacation days earned (calculated according to the duration of work).

The procedure for dismissal during the probationary period

The reasons for dismissal after the test can be different both on the part of the employer (failure to fulfill job functions) and on the part of the employee (if such work is not suitable).

When dismissal is initiated by the employer, formalities must be observed. First of all, a written notice (drawn up in 2 copies) with a signed explanation that the employee did not pass the test must be given 3 days before dismissal. If the employee refuses to sign the notice, then a report is drawn up, where in the presence of witnesses the notice is read to him and it is written that he refused to sign the report.

Important! Justification for dismissal based on test results must have supporting documents, such as: memos, explanatory notes, acts of violation of internal regulations, etc.

An order of dismissal is issued, where the basis for dismissal is indicated in Art. 71 Labor Code of the Russian Federation.

On the last working day, an entry is made in the work book: Dismissed due to unsatisfactory test results, part 1 of Article 71 of the Labor Code of the Russian Federation. The employee’s final payment is also issued (payment for days worked and payments for unused vacation).

The work book and payroll must be issued to the employee on the last day of work. If he does not appear, then a written notification is sent to him (including by mail). Even if the employee promised to appear for work and payment on the next day, this must be documented. Otherwise, disputes in court are possible.

If the employee does not pass the test, then the employer does not pay severance pay (Article 178 of the Labor Code of the Russian Federation), but only compensation for non-vacation leave.

What to do if compensation upon dismissal is not paid

If the employer refuses to transfer amounts due to the employee (for unused vacation and other payments), to resolve the situation, it is usually enough to send an appeal to the Labor Inspectorate regarding the violation.

A complaint is written, to which copies of the necessary documents should be attached: TD and sheets drawn up at the time of settlement.

Despite the absence of requirements for the form of drawing up the document, it should indicate the required data:

• addressee (full name of the unit with the current address of the inspection);
• complainant (indicate your full name, address according to registration and actual);
• known details of the offending employer (full official name, legal address, etc.);
• state what the requirements are;
• sign after drawing up and checking the document and decipher your signature;
• Enter the date of the complaint.

When presenting the issue, describe the situation as a whole, reflect the exact date of dismissal, and what amount was not paid. When drawing up a complaint, reference is made to the legislative norm.

For example, the employer’s obligation to make a full settlement with each of the dismissed employees is established by Article 140 of the Code.

Additionally, it is recommended to refer to Article 236 of the Code, according to which, in case of untimely payment of amounts due to employees, the employer can be held financially liable.

You will need to attach copies of the following documents to your complaint:

• the order in accordance with which the employee was appointed to the position;
• signed with the employer when applying for a job as a TD;
• employee's work record;
• his civil passport (for identification);
• documents of financial significance collected as evidence.

There is no need to specifically indicate the amount of financial liability when drawing up a document; it is quite possible to get by by mentioning the article.

The financial sanctions facing the violator are calculated by inspection specialists responsible for considering the case within the framework of the issues raised by the complaint.

The applicant has the right to attach evidence collected by him to the complaint, however, failure to perform these actions is not grounds for leaving the document without consideration.

All documents required to confirm the violation are requested by the inspectors themselves during the verification of the legality of the employer’s actions (inaction).

If necessary, they formally request additional documentation by contacting the employer.

The law establishes a specific period for consideration of a written appeal, equal to 30 days (according to Article 12 of Law No. 59, May 2, 2006).

You can submit the necessary documents to the Labor Inspectorate in several ways: in person, via mail, via the website (electronically). In this case, it is important to obtain confirmation of the fact of contacting the authority.

When a complaint is brought to the state. establishment by the applicant personally, then two copies should be prepared. On one, the responsible employee puts a mark of acceptance (date and entry number), the second is handed over to the inspection.

When sending a complaint by mail, a registered letter will be required (notification and inventory are additionally required). Receipts must be kept.

If the complaint is not satisfied by the inspectorate, or when it is completely inactive, the citizen has the right to send an appeal to the chief government official. inspector or start a lawsuit (Article 361 of the Code).

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.

Calculation of compensation for unused vacation

Art. 127 of the Labor Code of the Russian Federation guarantees, upon dismissal for any reason, payment of compensation for unused vacation.

When calculating compensation, the actual time worked is taken into account, rounding to the nearest 1 month:

• if less than 15 days are worked, then these days are not taken into account
• if more than 15 days are worked, then the missing days have no effect and are counted as a full month

To calculate the number of compensated vacation days, the total number of days of vacation stipulated under the employment contract per year (main + additional) is multiplied by the number of months worked and divided by 12 (rounded to the nearest hundredth).

Thus, if more than 15 days are worked, the employee can count on compensation as for a fully worked month.

Features of settlement with a dismissed employee

Article 70 of the Labor Code of the Russian Federation (hereinafter referred to as the Code) provides for a rule establishing that an employee on a probationary period has the right to claim compensation if the employer decides to dismiss him.

The compensation paid to the employee consists of the following types of payments:

• salaries for the time actually worked in the organization. During dismissal, the employer develops a debt from the remaining amount of the salary, which he is required to transfer on the day the employee is paid;
• payments accrued for unused vacation periods. This type of compensation is always paid, no matter what the reason for dismissal arises. When working in the company of the dismissed specialist for less than 11 months. he has the right to count on a proportional amount of compensation for unused vacation days (one month in this case accounts for 2.33 days);
• severance pay (SP) - this payment must be provided to the dismissed person in the event of termination of the contract under certain circumstances: when he is drafted into the army, laid off, dismissed for medical reasons. testimony, etc. (Article 178 of the Code). The amount of payment is established at the legislative level and by various types of agreements: TD, agreements.

Remember! They will not pay compensation only to those who worked for less than two weeks without completing the probationary period, as well as to citizens who performed work on the basis of civil contracts (Article 11 of the Code).

Dismissal of an employee during a probationary period at the initiative of the employer.

How much to work off upon dismissal during the probationary period, read here.

What does dismissal by agreement of the parties mean: pros and cons for the employee, read the link:

Example calculation of vacation days

Provided that the dismissed employee worked for 2 months and 10 days, then compensation will be calculated for 2 months.

If an employee worked for 2 months and 18 days, then compensation will be calculated for 3 months.

For each month worked, the employee must be compensated for the following number of vacation days:

Calculation of compensation for unused vacation

Payment amount = average daily earnings * number of vacation days

Average daily earnings are calculated based on wage accruals (payments related to work activity) during the billing period, which will be the probationary period until dismissal.

The number of days is calculated from the number of months worked. In this case, the number of vacation days is not rounded.

Common mistakes

Error: The employee worked on a probationary period for 12 days. He demands compensation for unused vacation.

Comment: Compensation for unused vacation is not due to employees who worked at the enterprise for less than half a month.

Error: An employee dismissed after a 2-month probationary period was not paid compensation for unused vacation.

Comment: Compensation for unused vacation is due to all employees of enterprises, including those undergoing testing.

Employer's liability for late payments

Mistake when dismissing during probationary period

The employee has not completed the established probationary period, but the employee has a disabled child under 18 years of age and is the only breadwinner in the family. Is it possible to dismiss an employee under Art. 71 Labor Code of the Russian Federation?

The employer cannot dismiss such an employee even if he is not satisfied with the results of his work, even if there is a probationary period, since this dismissal relates to the group at the initiative of the employer, and Art. 261 of the Labor Code of the Russian Federation reflects the issue that the contract with the employer is not terminated at the initiative of the employer if the employee is the sole breadwinner and has a dependent disabled child under 18 years of age.

Reasons for dismissal

The probationary period for a citizen is indicated in the employment contract (Part 1 of Article 70 of the Labor Code), the duration may vary:

• up to six months for leadership positions;
• up to 3 months for all other categories of workers;
• up to 2 weeks, if the total duration of the contract does not exceed six months.

For your information:

The absence of a probationary period clause in the employment contract means that the employee was hired without a trial.

In this short period of time, both interested parties will have time to understand whether it is advisable to continue cooperation. If not, then either party can terminate the employment contract.

Important

When dismissal occurs during the probationary period, the party wishing to terminate the contract shall notify the other party in writing 3 days in advance, stating the reasons.

The termination of cooperation is formalized as the citizen’s own desire, or his incompetence. This must be documented, since the employee can appeal the unlawful decision of the former management in court (Article 71 of the Labor Code). To justify the decision, the employer can prove that the employee:

• does not correspond to his position;
• has absenteeism and regular tardiness on his report card;
• has health problems that interfere with the performance of work duties;
• does not comply with internal labor regulations;
• violates safety regulations, etc.

Dismissal occurs at the initiative of the employer and in the event of a reduction in staff. An employee hired for a probationary period of at least two months has equal rights with colleagues hired on a permanent basis and receives severance pay. Regulates payments when reducing Art. 178 TK.

Error of the employee as having failed the test

An employee who fails the test is notified 3 days before the end of the probationary period. But the employee submitted his resignation of his own free will. Does the employer have the right to refuse dismissal on this basis?

The dismissal of an employee can be formalized in this case for any reason: both as having failed the test, and as at the employee’s own request. Upon dismissal under Art. 71 of the Labor Code of the Russian Federation, the employer must have grounds for such dismissal, otherwise the employee can resolve the issue of such dismissal through the court.

Answers to common questions

Question No. 1 : Is it necessary to pay compensation to an external part-time worker who resigns voluntarily before the expiration of the probationary period?

Answer : The employee, including an external part-time worker, must be paid such compensation, since guarantees and compensation, according to the Labor Code of the Russian Federation, are provided for part-time workers in the same amount as for main employees.

Question No. 2 : Based on the results of the test, the employer decided to fire the employee. The employee submitted a letter of resignation of his own free will and, on the last day of the probationary period, withdrew the letter. Is it possible to dismiss an employee for failing to pass the probationary period?

Answer : The employer is required to notify the employee in writing, so in such a situation the dismissal will be unlawful. Showing up for work the next day after the expiration of the test period indicates that the employee has passed the test and continues to work under the employment contract.

Actions of a citizen in case of delay in payments

Not all employers strive to comply with the law, and often delay compensation. Violation of the employee’s rights in this case begins from the day of dismissal. This means that from this moment he has the right to begin appealing against non-payment by contacting the labor inspectorate. We must not forget that applying to it has a limited time - only 90 days. After their expiration, the employee can no longer claim compensation.

The inspector is supposed to carry out an inspection at the enterprise within a month and issue a conclusion. The employer must comply with all instructions within 10 days.

So, in order for a citizen to receive all the required compensation, employment must be formalized, and the trial period must be agreed upon by the parties and recorded in the employment certificate. This guarantees the employee all the rights enjoyed by permanent staff. Due payments are made on the last working day. Otherwise, a citizen can appeal the resulting debt to the commission for the protection of labor rights and a judicial authority.