It often happens that an employee decides to quit, but does not have time to take off the required vacation in the current period. There are two directions of development of events: he is entitled to receive a compensation payment for unused vacation or write a vacation application followed by dismissal. In reality, there is not much difference for the employer. Nevertheless, when giving an employee leave with subsequent dismissal, one should know certain features. It is about them that we are talking about in this article.
Vacation followed by dismissal
How to to issue a vacation in such circumstances? To begin with, it should be noted that not everyone can take advantage of this opportunity. It will be advisable to familiarize yourself with the provisions of the Russian Labor Code, namely, article 127. It describes the procedure for granting employees leave of employment subject to further dismissal, as well as sample leave application followed by dismissal. As noted above, not all employees can apply for this type of vacation. So, the exception is those employees whose dismissal is based on their guilty actions. In order for the employee to not be able to issue vacation application followed by dismissal, on his part, it is enough only to fail to fulfill the labor duties that are prescribed in the relevant contract, or a gross violation in terms of labor discipline. It must be added that the full list of guilty acts can be found in article 81 of the Russian Labor Code.
You need to know that an agreement to leave an employee with subsequent dismissal is nothing but the right of the head. Therefore, do not confuse it with duty. In case of refusal by the employer to provide vacation followed by dismissal Compensation payment in the form of cash for an unused period of rest is sent to the employee without fail. It should be noted that today there is the possibility of obtaining partial leave. Thus, vacation days unused by the employee upon dismissal will in any case be compensated by a certain amount of cash.
Vacation Procedure
To begin with, it should be noted that characterizing vacation followed by dismissal sample clearance involves two options. In the first case, the employee is sent on another vacation in accordance with the schedule, which is mandatory approved by the management of the structure. So, the employee needs to document the fact. Initially or on vacation in order to receive leave followed by dismissal on their own desire, he needs to write only a letter of resignation.
It is important to note that this option is very convenient for the employer. Why? The fact is that the time period until the dismissal of an employee can be quite long. But today it is necessary to notify management at least fourteen days before a certain date of termination of the employment contract. Thus, for such a serious period of time, it is quite realistic to find a suitable replacement for this employee.By the way, we are talking not only about the days off due to the employee in accordance with the vacation queue, but also about the unused time for rest for previous periods.
The second option is leave followed by dismissal (day of dismissal, as in the previous version, coincides with the last day of vacation), which in no case is tied to the general vacation schedule in the structure. So, the employee is vested with the full right to fill out an application for vacation with a document on termination of the employment contract at his own request. It is important to note that both one and the second method are strictly regulated through article 127 of the Russian Labor Code. It would be advisable to fix that in the latter case, the employee fills out two applications:
- Vacation Application. This document must contain the start date of the vacation and its total duration. It should be mentioned that this is nothing but work leave followed by dismissal.
- Application for dismissal. This paper contains the reason why the employee plans to leave the employer, as well as the date of the event itself.
Good to know!
Application for leave followed by dismissal it is also issued when the reason for leaving is in the agreement between the employer and the employee. By the way, under such circumstances, a paper is also signed in which it refers to the termination of the contract. Then, when the basis for dismissal of an employee is the bankruptcy of the enterprise, reduction of its staff, liquidation or other similar moments, the employee agrees to read the notice about this and sign it. In addition, the employee is required to familiarize themselves with the order of the structure to reduce the corresponding position. Ultimately, he needs to write a statement to vacation followed by dismissal, sample which can be found in article 127 of the Labor Code. The employer undertakes to draw up two orders:
- Order "On the provision of leave." It should be noted that the role of the relevant grounds is nothing more than a statement drawn up by an employee. By the way, this order can be drawn up in the form of N T-6, approved by the Resolution of the State Statistical Committee, but it is not binding.
- Order "On dismissal." It is necessary to supplement that the paperwork is carried out in accordance with form N T-8.
It is important to know that in order to use the submitted forms, it is necessary to approve them in advance by order of the head of the structure as the accounting documentation used by the enterprise.
What can be in practice?
If an employee goes on vacation with subsequent dismissal, how to to issue? Today, in practice, a situation often occurs when an employee draws up only one application. It corresponds to the provision of leave. However, it notes that after the rest, the employee intends to terminate the employment contract on his own initiative. You need to know that leave followed by voluntary dismissal - This is not a violation of the standards approved in the relevant issue of the articles of the Russian Labor Code.
The deadlines agreed in order to warn the management of the structure about the dismissal are in any case respected. However, at the same time, the employee exercises his own right to receive paid annual time for rest and leaves fordeparture with the subsequent dismissal. How to draw up documentation in this case? In such a situation, this statement will serve as the basis for the orders presented above. In this case, a copy of the employee’s application is necessarily attached to one document.That is why experts recommend taking two documents from the employee at once: regarding the dismissal, as well as the provision of leave.
Vacation followed by dismissal: calculation
Despite the fact that the Labor Code stipulates the possibility of taking a vacation with subsequent dismissal, one way or another, it does not indicate what kind of rest should be in terms of duration. Today, the Russian Federation has a rule that assumes that an employee of the structure has the right to receive annual paid leave, the duration of which is twenty-eight days. Wherein vacation followed by dismissal It is possible six months after the relevant employment.
Then, when an employee carried out his own labor activity for a shorter period than a calendar year, but now he intends to take a vacation, and then quit, when calculating from it, as a rule, the amount of money is kept for unworked days. This alignment can be explained by the fact that rest time on the part of the leadership will be provided not only for the worked time period, but also for the time period that was provided for in the future. It should be noted that in the legislative plan, the rule presented is regulated by article 137 of the Russian Labor Code. At the same time, it is strictly forbidden to hold money for these days in the event of some situations. For example, employee leave followed by dismissal may be related to the grounds, which are described in detail in the current labor legislation.
What are the conclusions?
Thus, it would be advisable to formulate the conclusion that both parties (the employer and the employee) are free to agree on whether the vacation duration corresponds to the time period worked out by the specialist. Then, there will definitely be no need to withhold the money that was overpaid to the employee for the vacation. In addition, you can start discussing the question of how to calculate the duration of the granted vacation, based on the time worked by the specialist. It is important to note that it is possible to calculate vacation days by a certain method by applying the Rules published and approved by the USSR tubing that regulate additional and regular holidays. It should be added that the validity of the presented standards is also determined by the content of Article 423 in so far as it does not contradict Russian labor legislation.
So, if, in accordance with an employment contract, an employee's vacation is twenty eight calendar days, then dividing this amount by twelve months leaves 2.33 days. The resulting number is in accordance with one calendar month. When calculating the duration of an employee’s activity in the structure for calculating a compensation payment for an unused temporary rest period or for granting paid leave, the time less than fifteen days is excluded in any case, and more than fifteen days are rounded up to a full month.
Example
It is advisable to give an example of such rounding. Suppose an employee was hired on March 9, 2012. The number of his dismissal according to the calendar is November 19th, 2012. As a result, he worked for eight months and eleven days, which, when calculated according to the rules that are relevant to date (this is less than half the calendar month), are excluded. Thus, upon dismissal, an employee is entitled to receive a compensation payment for 18.64 days (in particular, eight months is multiplied by an average figure of 2.33). Then, when the employee still intends to take a vacation, the rest period will be only nineteen days.It is important to note that in the latter situation, rounding is done in favor of the employee. So, after this vacation, in any case, a dismissal is issued.
It must be borne in mind that when registering a labor contract of an urgent nature with seasonal workers vacation followed by dismissal will be determined depending on the time period worked out by them. As a rule, under such circumstances, for each calendar month, 2 days are allowed in accordance with the calendar. This provision is determined through the relevant article of the Russian Labor Code.
Payroll deductions
How to arrange a vacation with subsequent dismissal? Regarding the deduction from the employee of funds when calculating for unworked, however, the vacation days provided to him were mentioned in the previous chapters. It is important to add that the legislation provides for a deduction on salary payments that does not exceed twenty percent of the total amount. By the way, in those cases that are fully regulated through federal laws, this number often reaches fifty percent.
Thus, it would be advisable to familiarize yourself with the Letter of the Russian Ministry of Finance dated April 24, 2013. It somehow affects those moments that determine the specific amount of deductions from the wages of workers of various kinds of structures of the Russian Federation. In addition, it addresses issues of withholding tax on personal income from an employee. The Ministry of Finance notes that the tax agent is obligated to withhold tax from absolutely every cash payment sent to the taxpayer, the amount of which, as a rule, is fifty percent of the total accrued amount.
When these Provisions are taken into account in the process of calculating the deduction of monetary amounts attributable to holidays that have been spent but not worked out, their amount is fifty percent of the monetary payments. By the way, it often happens that it is completely impossible to collect a debt from an employee. For example, when its amount exceeds half the amount of the entire payment, which is due upon dismissal. In such circumstances, the tax service will account for the amounts that were paid in connection with unworked vacation days as unreasonable. So, in the process of calculating personal income tax, they are not taken into account. This provision is based on the above Letter.
When maintaining such a policy, it turns out that if an employee is fired for the amount of vacation days that he did not have time to work, it is necessary to slightly reduce the tax base. Nevertheless, reporting on insurance premiums and income taxes on individuals does not need to be adjusted. In addition, insurance premiums accrued on payments that are not taken into account in taxation are somehow recorded in the expense item when the profit tax is calculated.
Today there is an opportunity to arrange everything differently in principle. Thus, if management nevertheless decides not to withhold the amount from the employee, then there will be no need to formalize his forgiveness. As a result, after 3 years, the debt is written off as bad. It is important to note that in such a situation, adjustment in terms of profit structure is not required.
Personal income tax
So then, when on employee leave followed by dismissal the application has already been drawn up, you need to know that the date of receipt of salary is the last day on the calendar, according to which income is accrued. This rule is relevant only if the dismissal procedure is carried out immediately before the new calendar month arrives.By the way, this clarification also relates to the procedure for sending a tax on personal income to the state budget at the federal level. You need to know that the tax payment is withheld and calculated by the tax agent from the payments due to the employee in case of termination of the employment contract when they were made from the cash of the structure.
The financial department relies on paragraph six of Article 226 of the Russian Tax Code. It clearly states that tax agents undertake to transfer the amount of the calculated and withheld tax payment no later than the date of receipt of cash, the purpose of which is to pay wages. It is important to add that this also includes the day when income is transferred from the accounts of the financial structure to the account of an employee (in other words, a taxpayer) or (in accordance with his order) to the accounts of other persons.
It is important to note that in all other situations, tax agents are obligated to send the calculated and withheld tax payment no later than the day following the date the employee received the factual income if it is paid in cash. In conclusion, it can be noted that if the calculation with the employee who terminates the employment contract is made at the expense of the funds that are at the box office, the personal income tax must be paid no later than the day when the already dismissed employee received his own income.
Employment history
What other nuances does such category as vacation followed by dismissal? The current labor legislation of the Russian Federation states that when an employee decides to enjoy such a vacation and has already made a corresponding application, the last day of vacation is the date when the employment contract is considered terminated. In addition, this day will not coincide anyway with the day the employee last performed his own duties. She is considered to be exactly the date that is set immediately before the start of the vacation.
In such circumstances, the employer, in order to properly perform his own duties fixed at the legislative level, must in any case take into account the fact that absolutely all varieties of procedures related to the execution of the dismissal and subsequent calculation must be carried out not according to the official date of dismissal of the employee, but before the start of a well-deserved vacation. It is important to know that upon termination of the employment contract at the initiative of the employee, an entry must be made both in the workbook and in his personal card, which refers to the third paragraph of the first part of Article 77 of the Labor Code of the Russian Federation. On receipt of the work book, the employee must make a note in his personal card. This step is important and mandatory, therefore, you can not skip it in any case.