In accordance with applicable law, each employee has the right to an annual vacation with the payment of vacation allowance. But not always, for a number of reasons, it turns out to “walk off” the set days, or the employee decides to terminate the employment contract. In this case, how to calculate unused vacation time upon dismissal and what compensation can an employee expect?
Provisions for the provision of
Paid vacation is provided annually based on the time worked by the employee.
The right to the first paid rest appears for the employee after a six-month period of work in this organization or institution, starting from the first day of employment.
A gross violation of labor law, expressed in the unjustified non-provision of an annual vacation period, entails a statutory punishment.
The transfer of the employee’s rest period is allowed only in connection with the extreme industrial need. The fact of the transfer of leave should be officially recorded by order of management.
Unused during the current year, the employee’s rest period shall be transferred to the next year. Moreover, the next vacation is provided for two periods with the corresponding payment.
Separate employees and officials of the applicable laws and internal regulations provide for additional periods of paid leave. Extra leave is taken into account when calculating the total amount of vacation pay.
For categories of workers holding positions with irregular working hours, the law provides for the provision of additional days of rest (additional leave). The number of days added to the main vacation is determined by collective agreements and internal regulations in a particular organization. The upper limit is set by the management of the organization for each employee individually, the lower limit can not be less than three days.
By agreement of the parties, annual rest may be granted to the employee in separate periods, each of which must be at least half of the total period (that is, at least fourteen days).
Calculation procedure
The duration of the employee's annual vacation with the payment of vacation allowance is twenty-eight calendar days. When calculating the total duration of the employee’s rest in the current year, official holidays are excluded from this period. 
The total duration of the employee’s rest is increased by the number of additional days provided to certain categories of work positions and specialists.
How is seniority considered?
The period of employment of an employee, guaranteeing the provision of annual paid rest, is:
- The actual time worked by the employee (working days when he was at the workplace and carried out his labor activity).
- Periods of non-fulfillment by an employee of his work, permissible in accordance with the norms of the law and internal regulatory documents of the organization (for example, rest days, which are all-Russian non-working days, days off, provided legally).
- Periods when the employee could not fulfill the duties assigned to him in connection with the dismissal, if he was subsequently reinstated.
- The periods when the employee was suspended from his duties due to the lack of medical examination due to the fault of other persons.
- The periods when the employee was on regular leave.
- Unpaid rest periods provided in accordance with the law for a period not exceeding fourteen days (leave at your own expense).
What is not included in the length of service?
The following periods are not included in the estimated length of service:
- Absence of an employee at the workplace without objective circumstances (for example, absenteeism). Such periods include the time for which the employee was suspended from performing his duties (for example, due to alcohol or drug intoxication, lack of medical examination or a worker who did not pass and did not pass labor protection standards, that is, who does not have permission to carry out certain types works).
- The period of leave to care for a small child.
Guarantee of the exercise of rights to leave upon dismissal
The legislation of our country gives the employee the right to receive compensation for unused leave upon dismissal, which he did not manage to realize for the accumulated time of work experience with his employer.
The employee has the right to walk off unused days until the termination of the employment contract by submitting a written statement addressed to the head. Moreover, the last day of rest coincides with the day of dismissal of the employee.
The legislator obliges the employer to pay compensation for unused vacation in cash equivalent for all periods due to the vacation employee.
The employee also has the right to withdraw his application with the subsequent termination of the employment contract before leaving for vacation, if there is no applicant to fill his position.
How to calculate compensation for unused leave upon dismissal?
The procedure for determining this amount of money has several features. They are as follows:
- Calculation of the amount of unused vacation upon dismissal. For this, it is necessary to determine the length of service giving the right to receive it. It will be necessary to calculate the number of days the employee actually worked the time since his last vacation.
If when calculating the experience, an excess of the actually worked time of more than a crescent is found, then the calculator rounds off an incomplete month to a full month. On the contrary, if the excess is less than a crescent, then it is not taken into account.
- After determining the duration of the period, the average employee income per day is calculated. When calculating this indicator, the employee’s income for the twelve months worked before being fired is taken as the basis. Total income must be divided by 12, and the resulting value divided by 29.4 (the average value of working days in a month).
- The average daily earnings of an employee multiplied by the amount of the period of unused vacation upon dismissal will amount to the amount of monetary compensation upon termination of the employment contract.
If the period of unused vacation includes periods of temporary disability of the employee (for example, due to illness), the average employee income for one day is calculated using a different formula.
In this case, the employee’s actual earnings for the last twelve months must be divided by the value of the expression: the average number of calendar days of the month (29.4), multiplied by the number of full months actually worked by the employee last year plus the number of days worked by the employee in fact for incomplete months.
The calculation of the number of calendar days of the month when the employee did not fully fulfill his labor duties is performed in this way: the value 29.4 (the average value of the calendar days of the month) should be divided by the total number of days of the given month.The resulting value is multiplied by the number of calendar days in the month when the employee worked for less than a month.
Compensation deadlines
The Labor Code of the Russian Federation contains a provision according to which all payments due to an employee, including compensation for unused leave upon dismissal, are made on the last day an employee worked.
If the employee is absent from the workplace on that day, payments are made at his request on the day the demand is made or on the day following it.
If the employee has a complaint regarding the calculation of unused vacation time upon termination of employment or the amount of compensation, the employer is obliged to make payments in the amount of the uncontested amount by the deadlines established by labor legislation, that is, on the last business day.
Is compensation taxable?
In accordance with the tax legislation, clause 3, article 217 of the Tax Code of the Russian Federation, payments for unused vacation when leaving personal income tax are taxed. It is the employer's responsibility to make this payment to the budget no later than the next day as it was issued to the employee. In the certificate 2-NDFL compensation for unused leave upon dismissal - code 4800 ("Other income").
Liability of the employer for refusal to pay compensation
For non-compliance and non-compliance with labor laws regarding unused days of leave upon dismissal, the employer shall be held liable under Article 5.27 of the Code of Administrative Offenses. As a result, an unscrupulous employer will suffer one of the following penalties:
- a warning;
- fine (in relation to an official, organization or individual entrepreneur).
In the case of repeated involvement of perpetrators and organizations for a similar violation, the sanctions applied to the employer are tightened.