An employee’s right to leave when transferred to another employer

The nuances of dismissal after transfer leave

Translations are not uncommon in the modern world, especially within similar companies with similar working conditions. The reasons for this may be:

• restructuring of the previous company;
• personal will of a person;
• exchange of people between companies to meet the challenges of personnel problems;
• other.

Important! The transfer procedure itself takes place only in the legal field and provides for the written approval of a person for this (Part 2 of Article 72.1 of the Labor Code of the Russian Federation).

The algorithm takes place in two steps:

1. Cancellation of an employment contract with a previous employer.
2. Getting a job for a new one.

A subordinate does not have the right to refuse to formalize an employment contract for a new translation job. However, after a month he can easily do it.

How to calculate and pay vacation time when transferring to another job?

For example, if an employee previously worked in a position where he was entitled to fifty-six days of vacation, and he worked in this position for some time, and for the remaining time he worked in a position where he was entitled to only twenty-eight days of vacation.

How to count vacation days?

The transfer of an employee to another job () within the organization must be carried out in accordance with an order, which is drawn up on the basis of an application for transfer or a memo justifying the transfer.

The order can be issued either in any form or using standardized forms. In this case, regardless of the chosen form, the document is drawn up in one copy by an employee of the personnel department, signed by the head of the organization, as well as by the employee himself.

Then the employee was transferred to another position, in which the annual leave in accordance with the collective agreement is 40 calendar days. What length of leave should an employee be given if he has worked in a new position for 5 months?

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No, if you transfer to another job. If within the company, of course. Article 127 of the Labor Code of the Russian Federation. Exercising the right to vacation upon dismissal of an employee Upon dismissal, the employee is paid monetary compensation for all unused vacations. Upon written application of the employee, unused vacations may be granted to him with subsequent dismissal (except for cases of dismissal for guilty actions).

In this case, the day of dismissal is considered the last day of vacation. In case of dismissal due to the expiration of the employment contract, leave with subsequent dismissal can be granted even when the vacation time completely or partially extends beyond the term of this contract. In this case, the day of dismissal is also considered the last day of vacation.

We suggest you read: Vacation pay three days before vacation

When granting leave with subsequent dismissal upon termination of the employment contract at the initiative of the employee, this employee has the right to withdraw his resignation letter before the start date of the leave, if another employee is not invited to take his place by way of transfer. Article 72.1 of the Labor Code of the Russian Federation. Transfer to another job.

RelocationTransfer to another job - a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to work in another location together with the employer.

Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in parts two and three of Article 72.2 of this Code. At the written request of the employee or with his written consent, the employee can be transferred to a permanent job with another employer.

In this case, the employment contract at the previous place of work is terminated (clause 5 of part one of Article 77 of this Code). The employee’s consent is not required to move him from the same employer to another workplace, to another structural unit located in the same area, or to assign him work at another mechanism or unit, unless this entails a change in the terms of the employment contract determined by the parties. It is prohibited to transfer or move an employee to a job that is contraindicated for him for health reasons.

The transfer of an employee from one enterprise to another is considered a common occurrence. This procedure has some advantages for the employee and is regulated by this legislation of the Russian Federation. If dismissal occurs by transfer, the leave is retained under certain conditions. It is important for both parties involved in the translation process to know this.

When moving to a workplace in another organization, the employee will have to make payments from the previous enterprise. This means that leave upon dismissal by transfer to another organization is not preserved. The situation requires the following actions by the employer:

• the employee receives cash compensation payments for unregistered vacations;
• The employee is first asked to take all vacation days off and then resign.

An employer may provide an employee with overtime rest if there is a good reason for this. But at the same time, the employee will have to pay compensation in case of dismissal for the used part of the unauthorized leave.

It is worth considering that in case of any dismissal due to transfer, we retain the right to leave or compensation payments are paid for the remaining days.

Procedure for documenting translation

Transfer after vacation can be done in several ways and they are described in the table.

Types of translation

To understand whether compensation is paid for unused vacation upon transfer, it is important to know where the employee will be transferred. There are two types of employee transfer:

• internal movement of people between departments of one institution;
• external transfer from different departments, which occurs by calculation.

In both cases, consent to the movement of each of the parties is required: the employer and the employee.

Options for moving from one enterprise to another, ending with transfer, are determined by the initiative of each party. They are as follows:

1. Transfer of employees at their own will. With this option, the head of the department sends an invitation letter to the current manager, which contains a notification of readiness to hire the required employee. The notice may be sent by mail or delivered in person. If the manager agrees to transfer the employee to another organization, he needs to submit an application for dismissal in connection with the move. Then an order is issued with information entered into the work book and personal file. The employee receives all documents and compensation payments, if such right exists. After this, a position in the new institution takes place.
2. Transfer of an employee at the initiative of the manager. This may happen due to a reduction in the workforce at the enterprise. Next, the employer searches for work for his subordinates. After that, the leaders discuss the terms of the move. Employees must agree. This is fixed in a tripartite agreement, which provides for an indication of the position, payment and working conditions.

FAQ

Question No. 1 : Will the new company provide vacation according to the schedule approved at the previous job?

The law does not oblige employers to comply with this judgment. That is, you have the right to go on vacation only after working at a new job for six months from the date of registration (Article 122 of the Labor Code of the Russian Federation).

Question No. 2 : Do all kinds of vacation agreements have legal grounds?

The heads of both companies can agree and preserve the person’s right to go on vacation, as he should have been scheduled before the transfer. This especially helps the former company when it has nothing to pay compensation for vacation, which ultimately benefits both parties. But the parties must remember to violate the legal requirement to pay all required compensation upon dismissal, even if there are some written judgments. When a person writes a complaint about this, the company will certainly be fined for this (Article 5.27 of the Administrative Code).

Possibility to save vacation

When an employee changes positions within the same organization, it is very important to understand how to maintain vacation rights. An employee can be transferred due to a promotion or redistribution of responsibilities. The organization has remained unchanged, so maintaining leave is mandatory in such a situation.

The course of events is reflected by the creation of an order at the enterprise to transfer an employee from one division to another or from one position to another. The employee must familiarize himself with the document. This procedure does not provide for any other changes.

In accordance with the current legislation of the Russian Federation, when promoted, the vacation period may increase or the right to additional vacation may appear. In this case, all changes will be counted from the period when the transfer occurred. The previous vacation remains unchanged and is displayed in a specialized schedule.

An employee has the right to vacation only after 6 months of work and not earlier. This period is regulated by the Labor Code of the Russian Federation.

Mistakes when leaving after vacation

Mistake #1. There is no legal basis for counting vacation time taken as vacation time at the new company. If six months have not yet passed since the new employment, and the leave was granted with the caveat that it was given as part of the leave set of the previous company, then this is groundless. Any leave ahead of schedule has nothing to do with the previous employer and is specified in the personnel documents.

Mistake #2. It is simply impossible to transfer a person without his knowledge. In order to carry out this action, it is necessary to obtain the consent of the subordinate, or this can generally happen on his personal initiative

How to calculate the number of vacation days upon dismissal

Payroll calculation should not be difficult, but the question of how to calculate leave upon dismissal is more complicated, since the number of days may exceed the basic duration. This is possible due to previously unused or additional days. In order not to make a mistake, you first need to determine the total working time, which gives the right to receive annual paid rest (Article 121 of the Labor Code of the Russian Federation). In this case, it is necessary to take into account the specifics of providing additional vacation periods: for work under hazardous working conditions, etc.

Then you need to determine the total number of days that are due for the entire period of work with the employer. If the number of days turns out to be fractional, then the number is rounded in favor of the employee (letter of the Ministry of Health and Social Development of the Russian Federation dated December 7, 2005 No. 4334-17). After this, based on the data from time sheets (or other labor accounting documents), the days that the employee has already used are subtracted from the result obtained.

As a result, the remaining quantity is calculated.

• Actual time worked (FOV ) = the last 12 months (or less, but actually worked) - excluded periods.
• Number of days per time worked (KDOV) = (FOV / 12 months) / (the required number of vacation days in the employment contract / 12 months).
• Number of vacation days (KDO) = KDOV +/- remaining days.

Example #1. Calculation of vacation pay.

Welder of the Atlant foundry, Sidorenko A.M. receives 22,000 rubles here and he decided to leave for another job on May 23, 2020. In May 2020, according to the production calendar, there are 18 working days, that is, in fact, Sidorenko A.M. worked 11 days. Atlanta accounting, based on the work time sheet, revealed the average income of Sidorenko A.M. according to the algorithm of the quotient of his salary and working days, multiplied by the actual period worked:

22,000 / 18 * 11 = 13,444.44 rubles.

May income Sidorenko A.M. is 13,444.44 rubles, but he will receive the amount minus taxes:

13,444.44 rubles * 13% = 1,747.78 rubles – the amount of income tax.

13,444.44 rubles – 1,747.78 rubles –11,696.66 rubles.

Calculation of compensation for unused vacation

In accordance with Article 423 of the Labor Code of the Russian Federation, monetary compensation for unused vacation is paid by the employer to its employee in proportion to the days not taken off. The period worked, the duration of which is less than 2 weeks, is not taken into account in the calculation. If it is more than 14 calendar days, it is rounded up to a full month.

In a situation where the first or last months of an employee’s work in the company were incomplete, the sum of days worked during these periods must be taken into account. Below is a table to help calculate the number of vacation days eligible for financial reimbursement:

How to calculate an employee's average daily earnings

To calculate the amount of monetary compensation for unused vacation, you need to calculate the average daily salary of the worker. Decree of the Government of the Russian Federation No. 922 of December 24, 2007 “On the peculiarities of the procedure for calculating average wages” contains its calculation formula: SDZ = D/12/29.3, where SDZ is the average daily income, D is the annual income, 12 months in year, 29.3 is a constant number. Having calculated the worker’s indicated income, you should multiply it by the number of days off work. The result obtained will be the amount of financial compensation due.

Clarifying formula in case of incomplete number of days worked

There are cases when an employee worked for several incomplete months a year, for example, was on vacation, took time off, or was sick. The amount of days worked by him should be calculated using the following clarifying formula: SDZ = D/(29.3xMn + Mn), where Mn is the number of full months worked by the employee over the past year, Mn is the sum of the days of all incomplete months worked, SDZ is the average daily income of the worker , D is the employee’s income for the past year, 29.3 is a constant number (the average number of days of each month).

Payment of vacation pay upon dismissal

The dismissal of a subordinate, regardless of the reasons and its conditions, is under the close control of the law (Article 140 of the Labor Code of the Russian Federation). Based on the requirements set out there, management must pay the subordinate in full and give him his salary on the last day of his work in the company. There is an indulgence in terms only in a situation where on such a day a person did not begin to fulfill his work duties, but in this case it is postponed to the next day after the person’s request to calculate it. Payments due upon leaving include:

1. The remainder of the basic salary for the actual time worked.
2. Compensation for the remaining days of rest.
3. Other payments, for example, severance pay in case of staff reduction. They depend on the conditions under which and who is leaving.

Regulatory framework

Article 423 of the Labor Code of the Russian Federation establishes the procedure for calculating the number of vacation days for employed citizens of the Russian Federation. Articles 126 – 127 of the same code regulate the procedure for paying financial compensation for the main and additional parts of unused vacation. When leaving at his own request, the worker has a choice: go on vacation and date the termination of the employment contract to its last day or receive compensation for unused vacation.

An employer does not have the legal right to oblige a resigning employee to use allotted vacation days instead of receiving financial compensation for them. Under such circumstances, the worker may file a claim in court to recover unpaid money for unpaid vacation. Article 237 of the Labor Code of the Russian Federation gives the employee the right to demand compensation from the employer for moral damage caused to him. caused by failure to provide timely annual leave.

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How to register a move within an organization

The reasons for relocation may be changes in technological and production working conditions, or the possibility of an employee’s career growth. When you need to formalize the transfer of an employee to another structural unit for the same position that he currently occupies, then during the transfer his salary must correspond to the amount of salary and allowances that are indicated in the approved staffing table for the position in which he works in this moment.

After you agree on the transfer with the employee.