The dismissal of any employee should be accompanied by a transfer of the due payments to him. This includes not only the salary for the entire worked period, but also compensation for the rest period, if it was not used by the citizen during work. Compensation for the vacation should be correctly calculated, for which the average earnings of the company employee are determined in advance. If this payment is determined incorrectly, this will lead to the prosecution of the head of the company and the chief accountant.
When is compensation paid?
Compensation for the vacation should be paid upon the dismissal of any employee who has the right to take rest days. It does not matter for what reason the employment relationship is terminated. It is appointed upon the dismissal of a citizen of his own free will, on the basis of an agreement of the parties or on the initiative of the head of the company.
The rules for calculating and paying compensation for unused vacation are contained in Art. 127 shopping mall. Be sure to transfer funds on the last day of the specialist. The salary for the worked period is added to them.
Refusal to pay this compensation may be caused only by the fact that at the time of termination of the employment contract the employee did not have unused days of rest.
Calculation Rules
Compensation for unused vacation should be correctly calculated by the head of the company. The procedure is performed by the accountant of the organization. The calculation starts from the moment when the order from the personnel department is sent to the accounting department to dismiss a specific hired specialist.
The order must contain information on the reason for termination of the employment contract, as well as on the number of days of unused vacation. Additionally, information may be provided on excessively granted vacation days to be withheld if the vacation was arranged in advance for the employee. Only on the basis of this information is compensation for unused vacation calculated upon dismissal of an employee.
Rules for determining vacation days
Each employee of the company on the basis of Art. 114 TC has the right to rely on annual paid leave. If it is not used for a year, then the remaining days of rest are carried over to the next year. 28 days are assigned per year, therefore it is this number of days that is taken into account when calculating the monetary compensation for vacation.
If an employee for various reasons does not exercise his right to rest for the whole year, then compensation is calculated for 28 days. If several months have passed since the beginning of the year, the number of days is calculated in proportion to this time period.
How are rest days calculated?
To calculate compensation for unused leave upon dismissal, it is important to determine how many days a citizen can rest. For example, an employee of the company has been working for 5 months since the beginning of the year, not using his right to leave. To determine how many days compensation is calculated, you need to use the formula: number of days = 28/12 * 5 = 11.7.
In this formula, 28 is the number of vacation days offered annually to each employee of the company. 12 is the number of months in a year, and 5 is the number of months during which a citizen has worked in the company since the beginning of the year.
How is vacation compensation calculated?
Once it is determined how many days a citizen can receive compensation, the accountant determines the average daily earnings of the company employee. For this, the following formula is used: income per year / 12 months / average monthly number of days per month.
The average number of days per month is 29.3, since this value is used for official calculations. For example, a citizen receives a monthly salary of 44 thousand rubles. This includes not only his official salary, but also various bonuses, bonuses and other bonuses from the employer. In a year, his income is 44,000 * 12 = 528 thousand rubles.
Based on the available values, the average daily earnings are determined: 528,000 / 12 / 29.3 = 1,501 rubles. The amount received is multiplied by the number of unused days: 1501 * 11.7 = 17561 rubles. paid to employee.
Calculation of vacation compensation upon dismissal is considered a fairly simple process, if it is well understood.
What payments are not included in the calculation?
When determining the average daily income of an employee, different cash receipts, represented by the official salary, various allowances or bonuses, are taken into account, but there are some payments that cannot be used for these purposes. These include the following listings:
- payments that the employee received during a business trip, if they did not exceed the norms established in the law, since personal income tax is not paid from them, and insurance payments are not withheld;
- salary at a time when a citizen, on the basis of production needs, worked in a company while maintaining average earnings;
- allowance received on the basis of a disability certificate related to the detection of various diseases or childcare;
- payments received by the employee for the period when he could not cope with his duties due to the fault of the employer or due to unforeseen circumstances.
All such payments are calculated and determined only by the company's accountant. In addition, many workers prefer to independently calculate compensation for unused vacation, as they fear that they will be deceived by the employer. In this case, they can verify the correct determination of the payment.
What to do if it is impossible to determine earnings?
An employer may be faced with a situation where, from the very beginning of the year, the employee was on a long business trip or on parental leave. In this case, he receives money that is not used in calculating compensation for the vacation.
Under such conditions, the calculation should be based on tariffs and average accruals assigned to other employees working in a similar position. In this case, the amount of earnings approved by the company is taken into account.
If a citizen worked for a company where he received a gray salary, issued in an envelope, then by law he will not be able to count on compensation for leave upon dismissal. Therefore, it will not work to attract an employer for the absence of such a payment.
How to do with excessively paid compensation?
Difficulties for accountants often arise when they calculate the amount of vacation pay when an employee prepares a vacation with subsequent dismissal. In this case, mistakes are often made.
If an employee leaves before the end of the period for which he has issued a vacation, the company may retain the previously listed vacation pay based on Art. 137 shopping mall. If it turns out that the accountant of the company, for various reasons, incorrectly calculated compensation for unused vacation for the year, he will be held liable. From his salary, funds are collected to cover the damage.
Does the service life take into account?
When determining compensation, it is necessary to take into account how long a citizen works in the company. Therefore, it is important to know the legal requirements:
- if a citizen has been working in the company for more than 11 months, then the days of rest for all worked months are taken into account in the calculation;
- if labor obligations were performed within one month or a shorter period of time, then compensation is calculated only for 14 days;
- if the employment period is in the range from 1 to 11 months, then compensation is based on a pro rata calculation.
If a person has worked for more than 5.5 months, but less than 11 months, then he can expect full compensation only under the following conditions:
- liquidation of the enterprise is carried out, therefore, all employees working in the company are dismissed;
- the citizen quit due to being sent to military service;
- the employer independently decides to transfer the employee to another company.
Additionally, the employer may, for other reasons, transfer to the employee the full amount of compensation for the vacation.
Is an extra vacation payable?
Many workers, for various reasons, are entitled to special additional leave. In this case, the manager must ensure that employees regularly arrange rest days, as they are not postponed to the next year.
If a person can take advantage of additional leave, then usually employers take them into account when calculating compensation. For this, the formula uses not 28 days, but an increased value, depending on how long the additional vacation is.
Can the employer refuse to pay?
Often you have to face the fact that the employee accumulates a large number of days of rest, transferred from previous years. Under such conditions, the employer usually insists that the vacation is lost, but this is a violation of the law.
Every employee has the right to rest, so the days of rest prescribed by law cannot be lost. This applies to full-time employees, part-time workers or workers based on a fixed-term employment contract.
In case of violation of the requirements of the legislation, employees can complain to the labor inspectorate or even file a lawsuit.
Payout Taxation
The accountant of the company must not only understand how to calculate compensation for the vacation, but also what taxes are paid on this payment. All income of each official employed citizen is tax deductible. Therefore, 13% in the form of personal income tax is paid with compensation, and insurance premiums are also transferred.
Often, one has to face the fact that many unused days accumulate for which an employee can receive compensation, so compensation and payments to the budget will be significant.
What if the employer violates the law?
Quite often, employees have to deal with the fact that the director of the company pays less than what is required by law. In rare cases, compensation is not assigned at all, although a citizen is required by law to receive it, and is also officially employed by the company. Under such conditions, the labor rights of a citizen are violated, therefore, a claim should first be sent to the management of the company. If no payment is assigned within 30 days, then complaints are sent to the following authorities:
- Labour Inspectorate. The appeal may be in writing or on the organization’s website. It is considered within 30 days. Based on such a complaint, the employer is held liable, and also forced to transfer the amount due to the former employee. The applicant shall be notified in writing of the results of the verification.
- Prosecutor's office. Typically, a complaint to this organization is filed simultaneously with the application submitted to the labor inspectorate. The appeal indicates which rights of the employee were violated by the former employer. Based on this document, an inspection is carried out within a month. If significant violations are actually discovered, the company will be held liable.
- Filing a lawsuit. With the help of a trial, it is possible not only to bring the violator to justice, but also to recover compensation for moral damage from the former head. Therefore, when drawing up a claim, a lot of attention is paid to listing all claims.
It is advisable to make appeals to various state institutions immediately after dismissal and receipt of compensation, which is much lower than the amount due to the employee under the law.
Employer penalties
If the company does not pay compensation on time or without good reason significantly reduces the payment, then this is the basis for holding its officials liable. The main methods of punishment include:
- forcibly, the company transfers the former compensation to the former employee and additional interest is accrued, and the penalty is equal to 1/300 of the refinancing rate for each day of delay;
- the company will have to pay a fine for violating the employee’s labor rights;
- in case of repeated violations, labor inspectors or prosecutors can completely suspend the company or bring management to criminal liability.
These or other measures of responsibility are appointed only by the checking authority. It is most advisable to file a complaint with the labor inspectorate.
Conclusion
When an employee is dismissed, the head of the company is obliged to transfer all the due payments to him. Compensation for unused vacation days also applies to them. This payment is calculated on the basis of the term of work and the average earnings of the citizen.
If, for various reasons, the employer delays the payment or significantly reduces it, then this is the basis for applying different penalties to him by the prosecutor's office or labor inspectorate.