What is compensation upon dismissal? An example of calculating severance pay and compensation for unused vacation upon dismissal

Compensation calculation

The employer must pay compensation for unused vacation if, on the date of dismissal of the employee, he has accumulated work experience that gives the right to annual basic paid leave and additional leave (if the obligation to provide it is established by the labor legislation of the Russian Federation and (or) labor (collective) agreement), which in this case cannot be used in any way.

- in days

Annual leave is granted to an employee once during a year of continuous work with the employer. Therefore, leave is granted to an employee for his working year, and not for the calendar year. The first working year is calculated from the day the employee starts working, the subsequent ones - from the day following the end of the previous working year.

The procedure for calculating length of service giving the right to annual basic paid leave is established by Article 121 of the Labor Code of the Russian Federation. The vacation experience, in particular, includes (Part 1 of Article 121 of the Labor Code of the Russian Federation):

actual work time of the employee;
the time when he did not actually work, but he retained his place of work (position);
time of forced absence due to illegal dismissal or suspension from work and subsequent reinstatement to the previous job;
the period of suspension from work of an employee who has not undergone a mandatory medical examination (examination) through no fault of his own;
14 calendar days of unpaid leave granted to the employee at his request during the working year.

At the same time, certain periods of time when the employee was absent from work are not included in the mentioned length of service. These include time (Article 121 of the Labor Code of the Russian Federation):

absence of an employee from work without good reason, including due to his removal from work in cases provided for in Article 76 of the Labor Code of the Russian Federation;
leaves granted at his request without pay, if their duration during the working year exceeded 14 calendar days;
leave to care for a child until he or she reaches the legal age.

Thus, if the day of an employee’s dismissal does not coincide with the end of his working year, for which the employee has already taken vacation, then the employer must pay compensation to the dismissed person for unused vacation (Article 127 of the Labor Code of the Russian Federation).

The main issue when calculating compensation for unused vacation is determining the number of days for which it must be paid. The legislator, when adopting the Labor Code of the Russian Federation, left this issue without attention.

The procedure for determining the number of days of compensation for unused vacation was established at one time by the Rules on regular and additional vacations (approved by Resolution of the People's Commissariat of the USSR dated April 30, 2030 No. 169). Please note that this document continues to be in force to the extent that it does not contradict the norms of the Labor Code of the Russian Federation (Article 423 of the Labor Code of the Russian Federation).

According to paragraph 28 of these rules, a dismissed employee who has worked for a given employer for at least 11 months, subject to inclusion in the length of service giving the right to annual leave, is entitled to full compensation.

Let us remind you that employees are granted annual leave with preservation of their place of work (position) and average earnings for a duration of 28 calendar days (Article 114, Part 1 of Article 115 of the Labor Code of the Russian Federation).

Consequently, when dismissing an employee who has worked for the employer for 11 to 12 months, the latter must pay compensation for unused vacation for 28 calendar days.

Let us note that in the mentioned paragraph 28 of the rules there are five cases of dismissal in which employees who have worked from 5.5 to 11 months are entitled to full compensation. Thus, among them, dismissal was named due to:

with the liquidation of an enterprise or institution or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work;
entry into active military service;
revealed to be unfit for work.

Example 1

The employee, hired on January 13, 2014, was dismissed on June 6 due to conscription into the ranks of the Armed Forces of the Russian Federation.

The employee's vacation period at the time of dismissal was 5 months (until May 12) and 25 days (from May 13 to June 6), or 5.83 months. (5 months + 25 days: 30 days/month). Since it exceeds 5.5 months (5.83 > 5.5), the employee at the time of dismissal is required to pay compensation for unused vacation of 28 calendar days.

In all other cases, employees receive proportional compensation. Based on this, for each month worked, with an annual main leave of 28 calendar days, the employee is entitled to 2.33 days. (28 days : 12 months × 1 month).

Some employees are provided with extended vacations. Thus, the annual basic paid leave for employees:

for those under eighteen years of age, it is provided for a duration of 31 calendar days (Article 267 of the Labor Code of the Russian Federation);
for disabled people - at least 30 calendar days (Article 23 of the Federal Law of November 24, 1995 No. 181-FZ “On the social protection of disabled people in the Russian Federation”).

Therefore, for each month worked, an employee under the age of eighteen is entitled to 2.58 days. (31 days: 12 months × 1 month), for a disabled employee - 2.5 days. (30 days / 12 months × 1 month).

Rostrud, in a letter dated December 18, 2012 No. 1519-6-1, explained that since the Labor Code of the Russian Federation does not directly establish the provision on calculating the number of days of unused vacation, one should be guided by these rules regarding the need for proportionality in the payment of compensation, taking into account Article 423 of the Labor Code of the Russian Federation.

The Supreme Court of the Russian Federation, by decision dated December 1, 2004 No. GKPI04-1294 and ruling dated February 15, 2005 No. KAS05-14, confirmed the legality of application of the aforementioned paragraph 28 of the rules, indicating that the federal law does not regulate the issue of the mechanism for calculating compensation for unused vacation for employees who worked before dismissal at least 11 months, and federal law does not contain provisions that would prohibit regulating this issue in this way.

It is rare that, on the date of dismissal, an employee’s vacation service will be equal to a whole number of months. And in this case, the vacation days for which compensation must be paid are calculated in proportion to the months worked. In this case, the employer must carry out rounding in the manner prescribed in paragraph 35 of the rules. And they are prescribed surpluses amounting to:

less than half a month - excluded from the calculation;
at least half a month - round up to a full month.

The letter of Rostrud dated March 4, 2013 No. 164-6-1 confirmed that paragraph 28 of the rules defines the procedure for paying compensation to employees who have worked in the organization for less than a year.

As you can see, proportional compensation should be received by:

all employees who have worked for less than 5.5 months, regardless of the reasons for dismissal, as well as
employees who have worked from 5.5 to 11 months, if they are dismissed for any reasons other than those specified in paragraph 28 of the rules.

As mentioned above, for one month worked for the employer (taking into account the above rounding rule), upon dismissal, an employee is required to pay compensation for 2.33 days. In the mid-2000s, specialists from the Russian Ministry of Health and Social Development explained that when determining the number of calendar days of unused vacation to be paid when calculating monetary compensation, their rounding is not provided for by law. In this regard, officials recommended that employers, in case of making a decision on rounding (for example, to whole days), do not use the general rules of arithmetic, but resort to rounding in favor of the employee (letter of the Ministry of Health and Social Development of Russia dated December 7, 2005 No. 4334-17). In this case, this rounding procedure must be fixed in the local regulatory act of the organization.

Example 2

When an employee was dismissed, his vacation period, taking into account rounding, was 4 months. The provision of the local regulatory act of the organization fixes the rounding of allotted vacation days to their whole value.

Since the employee had worked for four months at the time of dismissal, in accordance with paragraph 28 of the rules, the employer must pay him compensation for 9.32 days. (2.33 days/month × 4 months). The presence in the local regulatory act of the organization of a condition on rounding compensation days to a whole value obliges the employer to pay compensation for 10 calendar days.

- in the accrued amount

Cash compensation for unused vacation is paid in the amount of average earnings in proportion to its duration.

Let us recall that the procedure for calculating average daily earnings for paying annual vacations and paying compensation for unused vacations is established by Article 139 of the Labor Code of the Russian Federation.

In any mode of operation, the average salary of an employee is calculated based on the salary actually accrued to him and the time he actually worked for the 12 calendar months preceding the period during which the employee retains his average salary. In this case, the calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive) (Part 3 of Article 139 of the Labor Code of the Russian Federation).

When calculating compensation in calendar days, the average daily earnings (SDW), provided that the calculation period (twelve calendar months preceding the month of dismissal) has been worked in full, is determined as the quotient of dividing the amount of accrued wages for this period (SZPRP) by 12 times increased the average monthly number of calendar days equal to 29.3 days (Part 4 of Article 139 of the Labor Code of the Russian Federation as amended by Federal Law dated April 2, 2014 No. 55-FZ “On Amendments to Article 10 of the Law of the Russian Federation “On State Guarantees and Compensations for Individuals” , working and living in the regions of the Far North and equivalent areas" and the Labor Code of the Russian Federation"):

SSDZ = SZPRP: 12: 29.3.

It is rare for employees to fully work out the pay period of 12 calendar months before the month of dismissal. The procedure for determining the average daily earnings when paying compensation for unused vacation when the payroll period is not fully worked is established by paragraph 10 of the Regulations on the specifics of the procedure for calculating the average salary (approved by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922). Thus, if one or several months of the billing period are not fully worked out or time not taken into account in the vacation record is excluded from it, the average daily earnings are calculated by dividing the amount of actually accrued wages for the billing period by the sum of the average monthly number of calendar days (29.3 ), multiplied by the number of complete calendar months (n), and the number of calendar days in incomplete calendar months (KKDNi):

SSDZ = SZPRP: (29.3 × n + KKDN1 + KKDN2 + ... + KKDNi),

where i is the number of months not fully worked by the employee; n + i = 12.

The number of calendar days in an incomplete calendar month is determined as the product of the average monthly number of calendar days (29.3) by the quotient of the number of calendar days falling within the time worked in a given month (KKDO) divided by the number of calendar days of this month (KKDM):

KKDN = 29.3 × (KKDO: KKDM).

To calculate average earnings, all types of payments provided for by the remuneration system and applied by the relevant employer are taken into account, regardless of the sources of these payments. Such payments, in particular, include (clause 2 of the regulation on average wages):

wages accrued to the employee at tariff rates, salaries (official salaries) for the time worked;
wages accrued to an employee for work performed at piece rates;
wages accrued to the employee for work performed as a percentage of revenue from sales of products (performance of work, provision of services), or commission;
wages paid in non-monetary form;
fees accrued in editorial offices of mass media and art organizations for employees on the payroll of these editorial offices and organizations, and (or) payment for their labor, carried out at the rates (prices) of author's (production) remuneration;
wages, finally calculated at the end of the calendar year preceding the event, determined by the remuneration system, regardless of the time of accrual;
allowances and additional payments to tariff rates, salaries (official salaries) for professional excellence, class, length of service (work experience), academic degree, academic title, knowledge of a foreign language, work with information constituting state secrets, combination of professions (positions), expansion service areas, increasing the volume of work performed, team management and others;
payments related to working conditions, including payments determined by regional regulation of wages (in the form of coefficients and percentage bonuses to wages), increased wages for hard work, work with harmful and (or) dangerous and other special working conditions, for work at night, payment for work on weekends and non-working holidays, payment for overtime work;
bonuses and rewards provided for by the remuneration system;
other types of wage payments applicable to the relevant employer.

At the same time, to calculate average earnings, social payments and other payments not related to wages (material assistance, payment for the cost of food, travel, training, utilities, recreation, etc.) are not taken into account (clause 3 of the regulation on average earnings) . One-time bonuses paid to employees on holidays, anniversaries, as well as other one-time bonuses that do not fall under the definition of “wage system” are not taken into account.

Continuation of example 1

Let’s add the condition: in connection with the conscription, the employee was called to the military registration and enlistment office in May for four days, in June - for one day, the rest of the time from the moment he was accepted into the organization was worked in full, the employee’s salary was 35,000 rubles, in April he was paid a bonus for the first quarter for the time actually worked in the amount of 32,280 rubles.

In the payroll period, only February, March and April were fully worked by the employee. In January, the hours worked accounted for 17.96 days. (29.3: 31 × 19), in May - 23.63 days. (29.3:31×25). In total, the billing period accounts for 129.49 days. (17.96 days + 29.3 days/month × 3 months + 23.63 days).

In months not fully worked, the employee was credited 30,882.35 rubles. (35,000 rubles × 15 days: 17 days) and 27,631.58 rubles. (RUB 35,000 × 15 days / 19 days), where 15 is the number of working days worked by the employee in January and May, 17 and 19 are the total number of working days in these months. The amount of actually accrued payments for the billing period, taken into account when calculating compensation, is equal to 195,793.93 rubles. (RUB 30,882.35 + RUB 35,000/month × 3 months + RUB 27,631.58 + RUB 32,280). Based on this, the average daily earnings amounted to 1512.04 rubles/day. (RUB 195,793.93 / 129.49 days).

Since the employee is dismissed due to conscription for military service and has worked for the employer for more than 5.5 months, compensation for unused vacation is paid to him for 28 calendar days. Its size is 42,337.12 rubles. (RUB 1,512.04/day × 28 days).

When an employment contract is terminated due to the employee’s conscription for military service, he is entitled to another severance pay in the amount of two weeks’ average earnings (Part 2 of Article 178 of the Labor Code of the Russian Federation).

The average employee’s earnings in this case are determined by multiplying the average daily earnings by the number of working days in the period subject to payment. Average daily earnings are calculated by dividing the amount of wages actually accrued for days worked in the billing period, including bonuses and remunerations taken into account, by the number of days actually worked during this period (clause 9 of the regulations on average wages).

The amount of actually accrued payments for the billing period when calculating severance pay remains the same - RUB 195,793.93. In the billing period, the employee worked 92 days. (15 + 20 + 20 + 22 + 15), where 20, 20 and 22 are the number of working days in February, March and April. Then the average daily earnings are 2128.19 rubles/day. (RUB 195,793.93 / 92 days), and the amount of accrued severance pay is RUB 17,025.52. ((2128.19 rubles/day × 8 days), where 8 is the number of working days in the period from June 7 to June 20, 2014).

In June, the employee was accrued 7,368.42 rubles for four working days worked. (35,000 rubles: 19 days × 4 days), for one working day, when the employee was at the military registration and enlistment office, he was accrued an average daily salary of 2128.19 rubles, a total of 9496.61 rubles. (7368.42 + 2128.19).

In total, the employee at the time of his dismissal was accrued 68,859.25 rubles. (42,337.12 + 17,025.52 + 9496.61).

Labor costs in accounting, in addition to the amounts accrued at tariff rates, official salaries, piece rates in accordance with the forms and systems of remuneration accepted in the organization, also include the costs of paying vacation pay to employees and compensation for unused vacations. Obligations for future payment of vacations are estimated, and therefore the organization creates a reserve for payment of vacations in accordance with the Accounting Regulations “Estimated Liabilities, Contingent Liabilities and Contingent Assets” (PBU 8/2010) (approved by order of the Ministry of Finance of Russia dated December 13. 10 No. 167n). And if the amount of paid vacation pay as of the reporting date is not so difficult to estimate, then in terms of compensation for unused vacations such an assessment is practically impossible.

Labor costs for the most part are expenses for ordinary activities (clauses 3, 8 of the Accounting Regulations “Costs of the Organization” (PBU 10/99), approved by order of the Ministry of Finance of Russia dated 05/06/99 No. 33n). A necessary condition for recognizing an expense in accounting is the ability to determine its amount (clause 16 of PBU 10/99).

Based on this, the accrual of compensation for unused vacation in accounting is accompanied by the following entry:

Debit 20 (23, 25, 26, 44) Credit 70

Compensation for unused vacation has been accrued.

In tax accounting, labor costs in accordance with Article 255 of the Tax Code of the Russian Federation include any accruals to employees in cash and (or) in kind, incentive accruals and allowances, compensation accruals related to working hours or working conditions, bonuses and one-time incentive accruals, expenses, related to the maintenance of these workers, provided for by the norms of the legislation of the Russian Federation, labor agreements (contracts) and (or) collective agreements. When determining the tax base for corporate income tax, cash compensation for unused vacation is also taken into account as part of labor costs in accordance with the labor legislation of the Russian Federation (clause 8 of Article 255 of the Tax Code of the Russian Federation).

Compensation paid to an employee for unused vacation is subject to personal income tax on a general basis (subclause 6, clause 1, article 208, article 209, clause 1, article 210 of the Tax Code of the Russian Federation). This follows from the provisions of paragraphs 6 and 7 of paragraph 2 of Article 217 of the Tax Code of the Russian Federation. Let us remind you that, according to this norm, all types of compensation payments established by the legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government (within the limits of the norms established in accordance with the legislation of the Russian Federation) related, in particular, to the dismissal of employees, are not subject to personal income tax. with the exception of compensation for unused vacation.

Although the mentioned paragraph 7 of paragraph 2 of Article 217 of the Tax Code of the Russian Federation was introduced into Chapter 23 of the Tax Code of the Russian Federation on January 1, 2012 (subparagraph “a” of paragraph 7 of Article 1 of the Federal Law of November 21, 2011 No. 330-FZ “On Amendments to Part second of the Tax Code of the Russian Federation, Article 15 of the Law of the Russian Federation “On the status of judges in the Russian Federation” and the recognition of certain provisions of legislative acts of the Russian Federation as invalid”), but in the original version of paragraph 6 of paragraph 2 of Article 217 of the Tax Code of the Russian Federation there was such a provision. And the tax authorities, referring to it, repeatedly reminded of the need to include in the taxable income of a resigning employee the amount of compensation for unused vacation (letter of the Federal Tax Service of Russia dated March 13, 2006 No. 04-1-03/133, Federal Tax Service of Russia for Moscow dated January 18, 2007 No. 21-11/003925).

A similar rule on the need to include the amount of compensation for unused vacation in the base when calculating insurance contributions to state extra-budgetary funds and to the Federal Social Insurance Fund of Russia for compulsory social insurance against industrial accidents and occupational diseases also exists in federal laws:

dated July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund” (subclause 2 “e”, paragraph 1 of Article 9) and dated July 24, 1998 No. 125-FZ “On compulsory social insurance against accidents at work and occupational diseases” (subclause 2, clause 1, article 20.2).

The fact that compensation payment to an employee for unused vacation, regardless of whether it is related or not to the dismissal of the employee, is subject to insurance contributions for compulsory social insurance in case of temporary disability and in connection with maternity and against industrial accidents and occupational diseases in the generally established order, the leadership of the FSS of Russia confirmed in the review of answers to questions on the application of the provisions of laws No. 212-FZ and 125-FZ (given in the appendix to the letter of the FSS of Russia dated November 17, 2011 No. 14-03-11/08-13985)

End of example 1

Let us add the condition: the employee was employed in the main production; when calculating insurance premiums to state extra-budgetary funds, the organization uses general tariffs; the established tariff for insurance premiums for injuries is 0.4%. The amount due in the final payment was transferred to the employee’s card account on June 6.

Accrual to the employee at the time of his dismissal on June 6, 2014 of the amount due in the final payment of 68,859.25 rubles. accompanied by the entry:

Debit 20 Credit 70

RUB 68,859.25 - the employee was accrued remuneration for the days worked in June, the average salary per day in the military registration and enlistment office, compensation for unused vacation, severance pay in connection with conscription.

The amount of severance pay is RUB 21,281.90. as a payment established by the legislation of the Russian Federation in connection with the dismissal of an employee, is not taken into account in the income included in the tax base when calculating personal income tax and the base for insurance contributions to state extra-budgetary funds and for injuries. Taking this into account, 6,738 rubles were withheld from the employee’s income. (((A rub. + (68,859.25 rub. – 17,025.52 rub.)) × 13% – A rub. × 13%), where A rub. is the amount of income subject to personal income tax, calculated on an accrual basis with the beginning of the calendar year until May 31, A RUB × 13% - the calculated amount of personal income tax on the specified income):

6738 rub. - the amount of personal income tax is withheld.

The organization is obliged to transfer the amount of calculated and withheld tax no later than the day of actual receipt of cash from the bank for the payment of income or the day of transfer of income from its bank account to the employee’s card account (clause 6 of Article 226 of the Tax Code of the Russian Federation). In this regard, on June 6, two payment orders were sent to the bank to transfer 62,121.52 rubles due to the employee. (68,859.25 – 6738) and paid personal income tax:

Debit 70 Credit 51

RUB 62,121.52 - the amount is transferred to the employee in the final payment;

6738 rub. - the amount of personal income tax is transferred to the treasury account.

Inclusion of income in the amount of RUB 51,833.73 into the employee’s base. (68,859.25 – 17,025.52) obliges the employer to charge insurance contributions to state extra-budgetary funds and for injuries in the amounts:

8293.40 rub. ((In rubles + 51,833.73 rubles) × 16% – In rubles × 16%) - to the Pension Fund of the Russian Federation for the insurance part of the labor pension;
3110.02 rub. ((In rubles + 51,833.73 rubles) × 6% – In rubles × 6%) - to the Pension Fund of the Russian Federation for the funded part of the labor pension;
RUB 1,503.18 ((In rubles + 51,833.73 rubles) × 2.9% – In rubles × 2.9%) - in the Federal Social Insurance Fund of Russia for compulsory social insurance in case of temporary disability and in connection with maternity;
2643.52 rub. ((In rubles + 51,833.73 rubles) × 5.1% – In rubles × 5.1%) - to the Federal Compulsory Compulsory Medical Insurance Fund for compulsory health insurance;
RUB 207.33 ((In rubles + 51,833.73 rubles) × 0.4% – In rubles × 0.4%) - in the Federal Social Insurance Fund of Russia for injuries,

where in rub. - the amount of income included in the base when calculating insurance premiums, calculated on an accrual basis from the beginning of the calendar year to May 31; In rub. × 16% (6, 2.9, 5.1, 0.4%) - the calculated amount of insurance contributions to the Pension Fund for the insurance part (PFR for the funded part, FSS of Russia in case of temporary disability, FFOMS, FSS of Russia for injuries) for five months of the calendar year.

The accrual of the specified amounts of insurance premiums is reflected in accounting as follows:

Debit 20 Credit 69 subaccount “Settlements with the Pension Fund, insurance part” (“Settlements with the Pension Fund, accumulative part”, “Settlements with the Federal Social Insurance Fund of Russia in case of temporary
disability", "Settlements with the Federal Compulsory Medical Insurance Fund", "Settlements with the Federal Social Insurance Fund of Russia for injuries")

8293.40 rub. (3110.02, 1503.18, 2643.52, 207.33 rubles) - insurance premiums were charged to the Pension Fund for the insurance part (PFR for the funded part, FSS of Russia in case of temporary disability, FFOMS, FSS.

"Negative" compensation

But a dismissed employee is not always entitled to compensation for unused vacation. The right to use vacation for the first year of work, as is known, arises for an employee after six months of his continuous work with the employer. Vacations for the second and subsequent years of work can be granted at any time of the corresponding working year in the order of their provision established by the vacation schedule of the given organization (Article 122 of the Labor Code of the Russian Federation). Therefore, an employee often takes a vacation as if in advance, without working until the end of his current working year.

It is quite possible that an employee, having used his annual paid leave before the end of his current working year, will submit a letter of resignation. In this case, the organization has the right to deduct from wages for unworked vacation days (Article 137 of the Labor Code of the Russian Federation).

The employer may decide to withhold from the employee’s salary no later than one month when he learned about the incorrectly calculated amount of payments, and provided that the employee does not dispute the grounds and amount of the withholding. Trudoviks recommend obtaining the employee’s consent to deduct amounts from wages in writing (Rostrud letter No. 3044-6-0 dated 08/09/07). To withhold, the employer must issue an order (instruction) for the employee to return the funds.

When paying wages, the employer is obliged to notify each employee in writing about the components of the wages due to him for the corresponding period, the amount and grounds for deductions made, as well as the total amount of money to be paid (Article 136 of the Labor Code of the Russian Federation). Therefore, information about the amount withheld should be reflected in the payslip.

Example 3

The employee submitted his resignation effective August 29, 2014. In May, he was granted annual paid leave of 28 calendar days. The average salary per vacation was 28,966 rubles. The employee's current work year began on October 17, 2013. For the days worked in August, the employee was accrued his salary of 28,500 rubles, the amount of the withheld amount is not disputed by him.

At the time of dismissal, the length of service giving the right to annual basic paid leave will be 10 months and 13 calendar days. Based on this, the employee had the right to 23.3 (2.33 days/month × 10 months) calendar days of vacation. He also used all 28 calendar days. Therefore, the employer has the right to withhold the amount corresponding to 4.7 (28 - 23.3) calendar days of vacation. Its value is 4862.15 rubles. (RUB 28,966: 28 days × 4.7 days).

For August, the employee was accrued 28,500 rubles.

The legislator has established a limit on the amount of withholding. Thus, their total amount for each payment of wages cannot exceed 20%. When deducting from wages under several executive documents, the employee must retain 50% of the wages (Article 138 of the Labor Code of the Russian Federation). In this case, the amount of deductions from the employee’s salary is calculated from the amount remaining after taxes are withheld (letter of the Ministry of Health and Social Development of Russia dated November 16, 2011 No. 22-2-4852).

From the income accrued to the employee in August, personal income tax is withheld in the amount of 3,705 rubles. (((A rub. + 28,500 rub.) × 13% – A rub. × 13%), where A rub. is the amount of income subject to personal income tax, calculated on an accrual basis from the beginning of the calendar year to July 31, A rub. × 13% - calculated amount of personal income tax on the specified income).

In our case, the withheld amount does not exceed the established threshold of 20% (RUB 4,862.15).< 4959 руб. ((28 500 руб. – 3705 руб.) × 20 %)).

When paying vacation pay, the corresponding amount of personal income tax was withheld from the employee. When part of the vacation pay is withheld, 4862.15 rubles, the withheld tax amount of 632 rubles must be reversed from them. (RUB 4,862.15 × 13%).

Thus, in the final payment the employee is due 20,564.85 rubles. (28,500 – 3705 – (4862.15 – 632)).

Debit 20 Credit 70

RUB 28,500 - wages accrued for August;

Debit 20 Credit 70

4862.15 rub. - the amount of vacation pay attributable to unworked vacation days is reversed;

Debit 70 Credit 68 subaccount “Personal Income Tax Payments”

3705 rub. - personal income tax was charged on employee remuneration for August;

Debit 70 Credit 68 subaccount “Personal Income Tax Payments”

632 rub. - the amount of personal income tax calculated from the withheld amount of vacation pay was reversed;

Debit 68 subaccount “Personal Income Tax Payments” Credit 51

3073 rub. (3705 – 632) - the amount of personal income tax was transferred to the treasury account;

Debit 70 Credit 50

RUB 20,564.85 - cash was issued to the employee as a final payment.

When calculating insurance contributions to state extra-budgetary funds and for injuries for the period from January to August, the monthly base for the organization as a whole will include the income of the dismissed employee in the amount of 23,637.85 rubles. (28,500 – 4862.15).

The discovery in the current reporting (settlement) period of the need to withhold from employees payments that were excessively accrued to them in previous reporting (settlement) periods, according to specialists from the Ministry of Health and Social Development of Russia, is not the discovery of an error in calculating the base for calculating insurance contributions to state extra-budgetary funds. Since in each of the specified periods (past and current), the base for calculating insurance premiums was determined as the amount of payments and other remunerations accrued in favor of employees in that period. Consequently, changes to the calculation of accrued and paid insurance premiums for past periods in the situations under consideration are not required (letter of the Ministry of Health and Social Development of Russia dated May 28, 2010 No. 1376-19).

Based on this, there is no need to make changes to the presented calculations of the RSV-1 Pension Fund and 4-FSS of the Russian Federation for the first half of the year (the data for May takes into account the entire amount of the employee’s vacation pay).

The organization takes into account the income accrued to the employee in August minus the withheld amount of vacation pay (RUB 23,637.85) in labor costs when determining income tax.

Fiscals from Moscow offer another accounting option. They recommend reflecting income in the form of deduction for unworked vacation days from the employee’s salary in connection with his dismissal as part of non-operating income, since previously the expenses of the employing organization incurred in connection with the provision of annual paid leave to the employee were taken into account when forming taxable profit (letter Federal Tax Service of Moscow dated January 11, 2007 No. 21-08/001467).

But in some cases, the existing limitation on the amount of withholding will not allow organizations to fully compensate for previously paid amounts attributable to unworked vacation days. In accounting, in this case, unretained amounts should be classified as other expenses, reflecting them in the subaccount “Other expenses” of account 91 “Other expenses and income”.

Example 4

Let us slightly change the conditions of example 3. Being on regular annual leave for the current working year since July 29 (it began on March 14), the employee submitted his resignation letter effective August 25, 2014. The employee's salary is 28,500 rubles, the amount of accrued vacation pay is 28,966 rubles.

At the time of dismissal, the length of service giving the right to annual basic paid leave will be 5 months and 12 calendar days. Based on this, the employee had the right to 11.67 (2.33 days/month × 5 months) paid calendar days of vacation. He was also given paid leave of 28 calendar days. The law allows the employer to withhold the amount of vacation pay for 16.33 (28 - 11.67) calendar days. Its value is 16,893.39 rubles. (RUB 28,966: 28 days × 16.33 days).

When the employee went on vacation, a full payment was made to him. An employee’s earnings in August for one day worked will be 1,357.14 rubles. (RUB 28,500 / 21 days × 1 day), where 21 is the number of working days in August. From this amount, in accordance with labor legislation, the employer has the right to withhold only 20% of the amount due for payment. And it is minus the calculated personal income tax of 176 rubles. (((A rub. + 1357.14 rub.) × 13% – A rub. × 13%), where A rub. is the amount of income subject to personal income tax, calculated on an accrual basis from the beginning of the calendar year to July 31, A rub. × 13% - the calculated amount of personal income tax on the specified income) for August - will be 1181.14 rubles. (RUB 1,357.14 – RUB 176). Therefore, 236.23 rubles are subject to withholding. (RUB 1,181.14 × 20%). From this amount, the employer withheld personal income tax of 31 rubles when paying vacation pay. (RUB 236.23 × 13%). Based on this, the employee is supposed to pay 975.91 rubles in the final payment. (1357.14 – 176 – (236.23 – 31)).

In accounting, these accruals will be reflected as follows:

Debit 20 Credit 70

RUB 1,357.14 - wages were accrued for one day worked in August;

Debit 20 Credit 70

RUB 236.23 - the amount of withheld vacation pay was reversed;

Debit 70 Credit 68 subaccount “Personal Income Tax Payments”

176 rub. - personal income tax is calculated on the employee’s income for August;

Debit 70 Credit 68 subaccount “Personal Income Tax Payments”

31 rub. - the amount of personal income tax calculated from the withheld amount of vacation pay was reversed;

Debit 68 subaccount “Personal Income Tax Payments” Credit 51

145 rub. (176 – 31) - the amount of personal income tax was transferred to the treasury account;

Debit 70 Credit 50

RUB 975.91 - cash was issued to the employee as a final payment.

Since the employer will not be able to withhold the entire amount due (16,893.39 > 236.23), the difference between the amounts of withholding subject to calculation and allowed by law is 16,657.16 rubles. (RUB 16,893.39 – 236.23), taken into account in other expenses:

Debit 20 Credit 70

RUB 16,657.16 - the amount of vacation pay that was not withheld from the employee and attributable to unworked vacation days was reversed;

Debit 91-2 Credit 70

16,657.16 - the undeducted amount of vacation pay is taken into account in other expenses.

The expenses of the employing organization incurred in connection with the dismissal of an employee at his own request at the end of the annual paid leave granted to him in advance, which it had the opportunity to withhold from the dismissed employee in accordance with the Labor Code of the Russian Federation, are strongly recommended by Moscow tax authorities not to be taken into account when forming taxable profit due to their inconsistency with the provisions of Article 252 of the Tax Code of the Russian Federation (letters of the Federal Tax Service for Moscow dated June 30, 2008 No. 20-12/061148, dated April 17, 2006 No. 21-07/30342).

The unwithheld amount, which in this case is not accepted as expenses when determining taxable profit, is recognized as a permanent difference in accounting. This difference contributes to the emergence of a permanent tax liability (clauses 4 and 7 of the Accounting Regulations “Accounting for calculations of corporate income tax” (PBU 18/02), approved by order of the Ministry of Finance of Russia dated November 19, 2002 No. 114n). To reflect it, the following entry is made in accounting:

Debit 99 Credit 68 subaccount “Calculations for income tax”

3331.43 rub. (RUB 16,657.16 × 20%) - a permanent tax liability has been accrued.

If the employee does not agree with the deduction, then the employer does not have the right to make it from the employee’s earnings. The employer, of course, can try to go to court in disputes about compensation by the employee for damage caused to the employer within one year from the date of discovery of such damage (Article 392 of the Labor Code of the Russian Federation).

But relatively recently, the judicial panel for civil cases of the Supreme Court of the Russian Federation issued a verdict that the current legislation does not contain grounds for collecting the amount of debt in court from an employee who used vacation in advance, if the employer, in fact, during the calculation, was unable to make a deduction for unworked vacation days due to insufficiency amounts due upon settlement (determination of the Supreme Court of the Russian Federation dated October 25, 2013 No. 69-KG13-6).

Please note that in some cases, deductions from wages for unworked vacation days are not made. This concerns dismissals on the following grounds (Article 137 of the Labor Code of the Russian Federation):

liquidation of the organization or termination of activities by the employer - an individual;
reduction in the number or staff of the organization's employees;
for health reasons in accordance with a medical report;
change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);
conscripting an employee into military service or sending him to an alternative civilian service that replaces it;
reinstatement of an employee who previously performed this work by decision of the state labor inspectorate or court;
in connection with the recognition of the employee as completely disabled in accordance with a medical report;
death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as deceased or missing;
the occurrence of emergency circumstances that prevent the continuation of labor relations.

Compensation, but not upon dismissal

Part 2 of Article 126 of the Labor Code of the Russian Federation allows the employer to pay monetary compensation for part of the annual paid leave exceeding 28 calendar days.

In addition to extended vacations, the Labor Code of the Russian Federation provides for the provision of annual additional paid leave to some groups of employees. Such leave is provided to employees:

those employed in work with harmful and (or) dangerous working conditions (Article 117 of the Labor Code of the Russian Federation);
for the special nature of the work (Article 118 of the Labor Code of the Russian Federation);
with irregular working hours (Article 119 of the Labor Code of the Russian Federation).

Part 2 of Article 116 of the Labor Code of the Russian Federation allows the employer, taking into account its production and financial capabilities, to independently establish additional leaves for employees, specifying the procedure and conditions for their provision in a collective agreement or local regulation.

The employer, as we see, has the right to replace with monetary compensation only that part of the vacation that exceeds 28 calendar days or any number of days from this part. But at the same time, it is not allowed to replace with monetary compensation the annual basic paid leave and annual additional paid leave for pregnant women and employees under the age of eighteen, as well as the annual additional paid leave provided to employees engaged in work with harmful and (or) dangerous working conditions ( Part 3 of Article 126 of the Labor Code of the Russian Federation).

The fact that compensation for unused vacation provided for by labor legislation is possible only if the part of the vacation to be replaced by it exceeds 28 days is also indicated in the resolution of the Federal Antimonopoly Service of the West Siberian District dated December 17, 2009 No. A46-9365/2009. Otherwise, payment of compensation for unused vacation is not allowed.

To receive monetary compensation in lieu of vacation, the employee must write an application. Based on such a statement, the employer issues an order to replace part of his vacation with monetary compensation.

Example 5

An employee who has an irregular working day and is entitled to an additional five calendar days of leave for this has applied to replace seven days of leave with monetary compensation.

The total duration of an employee's annual paid leave is 33 calendar days (28 + 5). When replacing seven days of vacation with monetary compensation, the duration of the employee’s annual paid vacation will be reduced to 26 calendar days (33 – 7). And it is less than the minimum duration of vacation (26< 28).

Based on this, the employer refused to replace the employee’s part of the vacation with monetary compensation, inviting him to submit a new application indicating the replacement of no more than five calendar days of vacation.

When paying the compensation in question, the obligations regarding taxation and calculation of insurance premiums are identical to the obligations arising when paying compensation for unused vacation upon dismissal of an employee.

Thus, the leadership of the Ministry of Health and Social Development of Russia, in a letter dated August 13, 2010 No. 2644-19, explained that compensation paid to an employee for part of his annual paid leave exceeding 28 calendar days does not fall within the scope of subparagraph 2 “and” paragraph 1 of Article 9 of Law No. 212 -FZ, since it does not reimburse the employee for specific costs associated with the direct performance of his job duties. In this connection, insurance premiums for compulsory types of insurance are calculated from the amount in the Pension Fund of the Russian Federation, the Social Insurance Fund of Russia and the Federal Compulsory Medical Insurance Fund in the general manner.

This obligation of the employer was also confirmed in the resolution of the Federal Antimonopoly Service of the Far Eastern District dated 04/03/13 No. Ф03-1033/2013.

When determining the tax base for income tax, financiers strongly recommend that organizations include in labor costs monetary compensation to employees for unused vacation only in excess of 28 calendar days, as well as for unused additional vacation (letter of the Ministry of Finance of Russia dated January 24, 2014 No. 03-03-07/2516, dated 01.11.13 No. 03-03-06/1/46713, dated 15.12.10 No. 03-03-06/2/212).

Let us note that from January 1, 2014, on the basis of an industry (inter-industry) agreement and collective agreements, as well as the written consent of the employee, formalized by concluding a separate agreement to the employment contract, part of the annual additional paid leave that exceeds the minimum duration of this leave established by part two Article 117 of the Labor Code of the Russian Federation, can be replaced by separately established monetary compensation in the manner, in the amounts and on the conditions established by the industry (inter-industry) agreement and collective agreements (Part 4 of Article 117 of the Labor Code of the Russian Federation as amended by Federal Law dated December 28, 2013 No. 421 -FZ “On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law “On Special Assessment of Working Conditions””).

The minimum duration of annual additional paid leave for employees whose working conditions in their workplaces, based on the results of a special assessment of working conditions, are classified as harmful working conditions of the 2nd, 3rd or 4th degree or hazardous working conditions. is 7 calendar days.

IMPORTANT:

When dismissing an employee, the employer must make a final settlement with him. One of the components of such a calculation, by virtue of Article 127 of the Labor Code of the Russian Federation, may be compensation for unused vacation.

When dismissing an employee who has worked for the employer for 11 to 12 months, the latter must pay compensation for unused vacation for 28 calendar days.

The procedure for calculating average daily earnings for paying annual vacations and paying compensation for unused vacations is established by Article 139 of the Labor Code of the Russian Federation.

To calculate average earnings, all types of payments provided for by the remuneration system and applied by the relevant employer are taken into account, regardless of the sources of these payments.

To calculate average earnings, social payments and other payments not related to wages (material assistance, payment for the cost of food, travel, training, utilities, recreation, etc.) are not taken into account.

Tax officials, referring to the provision of paragraph 6 of paragraph 2 of Article 217 of the Tax Code of the Russian Federation, have repeatedly reminded of the need to include in the taxable income of a resigning employee the amount of compensation for unused vacation.

In some cases, the existing limitation on the amount of withholding will not allow organizations to fully compensate for previously paid amounts attributable to unworked vacation days. In accounting, in this case, unretained amounts should be classified as other expenses, reflecting them in the subaccount “Other expenses” of account 91 “Other expenses and income”.

When calculating the total duration of annual paid leave, additional paid leaves are summed up with the annual main paid leave (Part 2 of Article 120 of the Labor Code of the Russian Federation).

Oleg MITRIC, auditor

Upon dismissal, the employer is obliged to pay the employee compensation for all unused vacations. Moreover, compensation is paid for vacations accumulated over the entire period of work with a particular employer. To determine it, it is important to know the number of vacation days to which the employee was entitled at the time of dismissal and his average earnings. The procedure for payment of compensation is established by paragraph 28 of the Rules on regular and additional leaves, approved by the People's Commissariat of Labor of the USSR dated 04/30/30 No. 169.

If, shortly before dismissal, an employee used vacation for an unfulfilled working year, then upon dismissal, overpaid vacation pay must be withheld from his salary. In some cases, such deduction is not made, for example, during the liquidation of an organization (Part 2 of Article 137 of the Labor Code of the Russian Federation).

To fully understand settlements with employees, for example, how to correctly calculate and pay wages, average earnings in different cases, benefits, business trips, etc., we recommend training in the online course of Kontur.School “”. Based on the results of the training, you will also receive a certificate of advanced training of 136 academic hours.

How to calculate compensation for unused vacation?

If an employee has worked in an organization for 12 months, which includes the vacation itself (Article 121 of the Labor Code of the Russian Federation), then he is entitled to an annual vacation of 28 calendar days. In other words, full compensation is paid to an employee who has worked for the employer for at least 11 months (clause 28 of the Rules on regular and additional leaves). If the resigning employee has not worked the period that entitles him to full compensation for unused vacation, compensation is paid in proportion to the days of vacation for the months worked (clause 29 of the Rules).

When calculating the periods of work that give the right to compensation upon dismissal, surpluses amounting to less than half a month are excluded from the calculation, and surpluses amounting to more than half a month are rounded up to a full month. Compensation is paid in the amount of average earnings for 2.33 days (28 days / 12 months) for each month of work.

An example of calculating compensation for unused vacation upon dismissal

Pavel Krainov worked with the company from July 1 to July 18, 2015. His salary for the time actually worked in July is 15,600 rubles. Can Krainov count on compensation for unused vacation? If yes, then for how many days and in what amount?

The annual basic paid leave is 28 calendar days.

The employee has worked more than half the month, and therefore can count on compensation for unused vacation.
More than half a month has been worked, so compensation should be paid for one month. We determine the days for which compensation should be calculated. 28 days / 12 months = 2.33 days.
Determine the average daily earnings. In general, to determine compensation for unused vacation, the calculation period is 12 calendar months. But the specified employee did not work the pay period; accordingly, the average daily earnings are calculated according to the norms of clause 7 of Decree of the Government of the Russian Federation of December 24, 2007 No. 922.
29.3 / 31 * 18 = 17.01 days,
where 29.3 is the average monthly number of days, 31 is the number of calendar days in July, 18 is the number of days that fall during Krainov’s work period.
We determine compensation for unused vacation.
917.08 * 2.33 = 2,136.86 rubles.

Compensation for unused vacation: personal income tax and contributions

Commented by Alexey Bondarenko, lawyer, tax consultant: “Regardless of the taxation system that the organization uses, withhold personal income tax from compensation for unused vacation associated with dismissal (paragraph 6, clause 3, article 217 of the Tax Code of the Russian Federation). Since compensation is not payment for completed work duties, the date the employee receives income will not be the last day of the month or the last day of the employee’s work (as in the case of remuneration, clause 2 of Article 223 of the Tax Code of the Russian Federation), but the moment of actual payment of income (clause 1 Article 223 of the Tax Code of the Russian Federation). Also, do not forget that from compensation for unused vacation associated with dismissal, you need to accrue contributions to compulsory pension (social, medical) insurance and insurance against accidents and occupational diseases in contributions in the usual manner» .

Compensation for unused part of vacation while working

Sometimes an employer can pay compensation to an employee without waiting for dismissal. In this case, we will talk about additional paid leave, part of which, at the written request of the employee, can be replaced by monetary compensation while working for a specific employer. However, it is not allowed to replace annual additional paid leave with monetary compensation for pregnant women and employees under the age of 18, as well as employees engaged in work with harmful and (or) dangerous working conditions, for work in appropriate conditions (except for the payment of monetary compensation for unused leave upon dismissal).

There are vacations exceeding 28 days, but not subject to compensation during the period of work, the so-called extended vacations.

How to reflect the accrual for unused vacation in 6-NDFL

Upon dismissal, the employer is obliged to pay tax on the accrued amount of compensation (Article 217 of the Tax Code of the Russian Federation). Information on the amount of personal income tax must be entered on an accrual basis in sections 1 and 2 of Form 6 of personal income tax. The withheld tax must be transferred to the budget (Article 226 of the Tax Code of the Russian Federation).

For part-time workers, the calculation procedure is the same.

Let's consider the question of how compensation for unused vacation upon dismissal is calculated. Many citizens, when leaving an enterprise, do not know that they can take advantage of legal leave or cash payments, even if, according to the schedule, it has not yet come up. Let's fill this knowledge gap.

In accordance with the Labor Code of the Russian Federation, upon termination, the employee is granted leave for the time worked or monetary compensation. The use of this right does not depend on the reasons for dismissal. The employer’s obligation to provide rest to a resigning employee or compensate him with a monetary payment is enshrined in the law of the Russian Federation. The following situations are exceptions:

The employee worked at this enterprise for less than 15 days. Under these conditions, the employee is deprived of the right to vacation or monetary compensation for it. Otherwise, the employer cannot avoid paying the employee legal compensation for unused vacation upon dismissal;
involves the transfer of an employee from the category of a third-party part-time worker to the main staff of the enterprise, i.e. this enterprise for the employee moves from the place of combination to the place of main work. This is the case if the translation procedure is followed. And in the event of termination of the employment relationship by terminating the contract between the part-time worker and the employer and signing a new one, i.e. the transfer is carried out through dismissal; compensation for rest with a monetary payment is required by law.

In all other cases, vacation or monetary payment to the employee is based on the labor legislation adopted in our country.

In case of voluntary dismissal from the staff of the enterprise, the employee expresses in writing a desire to use the next paid leave or to receive a monetary payment for it.

The next step is the creation of an appropriate order by the head of the enterprise. If an employee chooses to use the paid rest allotted to him and then resign, the employer’s opinion is taken into account. The head of the enterprise has the right to refuse to provide a vacation period and compensate for it with a monetary payment, citing production necessity. If a resigning employee declares a desire to receive a financial payment instead of a vacation, then the opinion of the head of the enterprise in this situation is not taken into account. The organization must make a payment of funds.

When using monetary compensation instead of the required leave upon dismissal, the moment of termination of the employment relationship will be considered the day when the employee ended his career at the enterprise.

Vacation followed by dismissal entails a slightly different calculation of compensation. If an employee decides to exercise the right to take the required vacation time and then resign from the company, the day of termination of the contract will be the last day of rest.

Calculation of the number of vacation days upon dismissal

Calculate the number of months of work experience of an employee in a given organization. Only those months in which professional activity lasted more than 15 days are taken into account;
The days the employee is on leave without pay are subtracted from this time period;
Calculate the total number of legal paid days of rest for the entire period of work in the organization. To do this, divide the employee’s annual rest days established by the employment contract by 12 and multiply by the number of months worked. This value will be the total number of vacation days due to the employee for the entire period of work at the enterprise;
From this amount we will remove the days already taken off, and what will remain is that same unused rest;
This period will be provided as leave upon dismissal or compensated by cash payment.

How to calculate compensation for unused vacation upon dismissal

And the procedure for calculating compensation for unused vacation upon dismissal is no different from calculating compensation payments to working employees. The only difference is the number of paid days. If there are restrictions for a working employee, there are no maximum permissible standards for a resigning employee. So, the calculation of compensation for unused vacation upon dismissal occurs as follows:

To begin with, we calculate the total amount of earnings for the billing period (12 months) received by the employee. This calculation does not include sick leave and vacation pay;
The next step is to determine the number of calendar days of the billing period. If the employee worked the entire month, then the accepted average number of 29.3 is taken. If during this period of time there were non-working days due to vacation or illness, they are not taken into account;
Average daily earnings are determined by dividing the amount of total payments for the year (clause 1) by the number of days worked (clause 2);
This value is multiplied by the number of days of unused rest;
The resulting value is paid in cash equivalent as compensation for unused vacation;
Payment of unused vacation upon dismissal, that is, payment of compensation occurs along with the issuance of funds due to the resigning employee.

The period of unused vacation, replaced by compensation, of a resigning employee has no restrictions, unlike working employees. All legal days off must be provided to the citizen or financially compensated.

As noted earlier, an employee is entitled to leave or monetary compensation upon dismissal from the staff of the enterprise, regardless of the reason. The law stands on the side of the citizen and protects his right to rest and financial payments. The widespread legal illiteracy of hired workers does not give enterprise managers the right to abuse this circumstance.

Termination of an employment contract under certain conditions means payment of severance pay and other compensation amounts subject to tax and insurance contributions.

Termination of an employment contract

Termination of employment involves the fulfillment of certain responsibilities of management towards the dismissed employee. The cases that trigger dismissal are varied. In some situations, the initiative to terminate the contract comes from the employee; in other circumstances, dismissal occurs due to the fault of the employee or taking into account cumulative external factors.

Upon completion of work, employees must be paid the amounts earned. A calculation of a compensatory nature is also required. The amount of payments depends on the conditions of dismissal, the concluded employment contract and the employer’s internal regulations on remuneration.

Grounds for dismissal

The dismissal procedure is preceded by the occurrence of certain circumstances. Among them are the following: the desire of the parties to continue the employment relationship, the nature of the concluded agreement, and the presence of other circumstances. Dismissal occurs for the following reasons:

Employee initiative. As a rule, dismissal under this article is made with the wording “at one’s own request” coming from the employee.
At the initiative of management. Happens for various reasons. Some of them are committed taking into account the degree of guilt of the employee: failure by the employee to comply with labor discipline, inconsistency with the position held, gross violation of labor duties, disobedience to work regulations. The termination of the working relationship also occurs due to the refusal of management to renew the contract after the expiration of its term, including the probationary period.
Dismissal of senior management employees (directors, chief accountants) upon change of ownership.
Termination of labor relations as a result of liquidation of the enterprise, if necessary, reduction of staff.
Dismissal is the transfer of an employee to another place of duty.
Refusal of employees to further perform their duties under changed working conditions.

Procedure for terminating an employment contract

To terminate an employment contract, the initiating party must confirm its intentions in writing. The employee draws up an application addressed to management; the employer is obliged to send the dismissed employee advance notice.

When leaving at your own request, a corresponding statement is written at least 2 weeks before the designated date. During this time, the employee has the right to withdraw the application and continue working.

Dismissal may occur earlier than the agreed period by agreement of the parties. If the employer is found to have violated labor laws (delayed wages), the employee’s request to terminate the employment relationship must be satisfied immediately, without a 2-week work period.

If there is a probationary period, the application for dismissal is submitted 3 days before the expiration of the probationary period.

The employer also has the right to terminate the contract with the employee during the probationary period by notifying 3 days before the end of the validity period. In other cases, it is somewhat more difficult to fire an unwanted employee.

If the reason for termination of the contract is non-compliance with discipline and internal regulations, then this fact will need to be proven in writing. Before dismissal due to redundancy, the employee will need to be offered another alternative position, if available.

In almost all cases of termination of an employment relationship, it is necessary to make a full settlement with the employee.

Payments to employees upon dismissal

There are several types of benefits that dismissed employees may qualify for. Among them are the following:

Calculation for time worked. The balance of wages representing the employer's debt is paid. The transfer must be made on the day of dismissal.
Compensation for unused vacation. All non-vacations due to the employee are taken into account. If there is leave used in advance, the amount previously paid to him is withheld from the employee. If the settlement funds are not sufficient for this, the dismissed employee repays the resulting debt only on a voluntary basis. If refused, the employer has the right to go to court for damages.
Severance pay upon dismissal. Paid if termination of the contract occurred at the initiative of the employer. Compensation payments in the amount of 2 weeks, 2 or 3 months of earnings are made in case of reduction or liquidation.

Tax-free payments upon termination of an employment contract

When dismissing an employee, the corresponding amount of personal income tax must be withheld from the settlement amount. The rule affects both payments attributable to wages and compensation accruals. But in some cases, amounts received are not subject to tax.

If an employee is paid severance pay upon termination of employment, then no tax is withheld from the amount exceeding 3 months' earnings. For workers in the Far North, personal income tax is not withheld from amounts paid equal to 6 times their earnings. In this case, compensation for unused vacation is not taken into account. From this amount of accruals, personal income tax is withheld in full.

Types of payments to employees upon dismissal

Grounds for dismissal	Payroll calculation	Compensation for unused vacation	Severance pay
At your own request	Paid	Paid	According to the internal regulations on remuneration
By abbreviation	Paid	Paid	Within 1 average salary
Upon liquidation	Paid	Paid	Within 2-3 average earnings

1. Hello. I worked as an accountant in a private construction company for 6 years. Due to the change of ownership, the new management decided to dismiss the accounting department. Are their actions legal?

A change in the owner of an organization serves only as a basis for terminating employment relations with the management team, including the chief accountant. Regarding other accounting employees, a change of founders is not a reason for dismissal.

For employees who previously entered into a fixed-term contract, upon expiration of its validity, the following payments are due: wages, compensation for unused vacation, other payments, if they are provided for by the internal regulations on remuneration. All accrued amounts are subject to taxation, with the exception of severance pay exceeding 3 times the average salary.

3. Hello. What to do in the following situation? An employee who has worked for the organization for only 6 months resigns. Previously, by agreement with the employer, he was granted full leave for 28 calendar days. How to calculate severance payments?

If the vacation at the time of termination of the employment contract was used in advance, it is necessary to make a calculation and retain the previously issued funds. The employee can return the difference in the accrued amount on a voluntary basis. In this case, personal income tax also needs to be recalculated.

As labor law states, every employee has the right to receive paid annual leave.

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

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Vacation pay is a sum of money that is paid to an employee when taking a vacation. But in practice, there are cases when an employee quits without having time to fully use his vacation. In such a situation, he can count on receiving compensation.

What do you need to know?

First of all, you need to know that if an employee has the right to receive annual paid leave, then the employer is obliged to pay him vacation pay upon dismissal.

Accordingly, when terminating an employment contract, it is first necessary to calculate the number of days of unused vacation. But besides them, the employee must also know the size of the average daily earnings. It is on the basis of this indicator that the amount of vacation pay is calculated.

The amount of daily earnings is the sum of the average monthly earnings. The calculation of the amount of vacation pay is carried out by the company's accountant.

Normative base

The main legal act regulating this area of legal relations is the Labor Code of the Russian Federation.

In particular, this legislative act provides for:

the procedure for granting annual paid leave;
grounds and procedure for terminating an employment agreement concluded with an employee;
rules for calculating the amount of vacation pay upon dismissal.

Calculation of vacation pay upon dismissal

At your own request

The Labor Code of the Russian Federation states that an employee can be...

To do this, it is enough to write the appropriate letter and notify the employer of the last day in this position. In this case, the employee also has the right to receive the amount of vacation pay.

At the same time, the rules for calculating vacation pay are the same when applying all grounds for terminating an employment contract: this fact is not of particular importance.

In practice, there are cases when employees use all their vacation and only after that submit an application for termination of the employment contract. In this case, of course, vacation pay is not paid.

By agreement of the parties

In practice, very often the employment agreement is terminated. If an employee has unused vacation days, he receives vacation pay upon settlement.

When terminating an employment contract on this basis, the parties enter into an appropriate agreement, which indicates the day of the employee’s dismissal.

This document also needs to indicate the amount of money that the employee will receive upon dismissal.

When contracting

In practice, there are cases when an employee gets caught. In this case, the employment contract is terminated at the initiative of the employer.

But this does not mean that the employee is deprived of the opportunity to receive vacation pay. They must be paid to him in full along with other payments that the employee receives upon dismissal.

If the employer does not pay the amount of vacation pay upon layoff, the employee can file a claim in court and demand their payment.

In this case, the employee may also request payment of legal expenses (for example, legal fees).

For less than a year

In practice, there are very often cases when an employee quits without working for a particular employer for less than 1 year. The law provides for the number of vacation days for a full year.

In such a situation, the calculation is carried out based on the following principles:

when working for more than 11 months, compensation is calculated for all 11 months;
if an employee worked in a given company from 1 to 11 months, then compensation is paid by making a proportional calculation;
if an employee has worked for less than 1 month, then he can count on receiving vacation pay if he worked in this enterprise for at least half a month.

But there are also exceptions to this rule. If employees have worked in the organization from 5.5 to 11 months, then they can receive the following amount of vacation pay:

when closing a company;
at the time of enlistment in military service;
when transferred to another job or position, etc.

Procedure

Below is the procedure for paying vacation pay upon dismissal of an employee.

Documentation

To pay the amount of vacation pay, you must have certain documents.

These include:

resignation letter if the employee resigns of his own free will;
on termination of the employment contract;
agreement on termination of employment relations if dismissal is carried out by agreement of the parties.

Calculation of monetary compensation

The calculation of the amount of vacation pay and its payment is carried out by the company's accountant.

Overpaid funds

In practice, there are very often cases when employees take leave with subsequent dismissal.

In such a situation, it is necessary to pay special attention to the calculation of the amount of vacation pay, since, according to statistical data, it is in this situation that the largest number of errors are made.

If the employment contract was terminated before the expiration of the period of time for which he received leave, then the employer has the right to withhold overpaid money from the amount that should be transferred to the employee’s account upon his dismissal.

But if the calculation was made incorrectly due to an accountant’s error, the employer may demand this amount from him.

If the employee had no income

Many enterprises use a remuneration scheme called “black wages”. In this case, an employment agreement is not concluded with the employee, and accordingly, no accruals are made from the salary to the tax service and the pension fund.

From a legal point of view, the employee does not receive wages; therefore, in such a situation, it makes no sense to talk about the possibility of receiving vacation pay.

The employer can safely not pay them, but the existence of an employment relationship will have to be proven in court.

In practice, there are also cases when, for example, an employee was on maternity leave during the current year. This means that wages were not accrued.

In such a situation, when calculating the amount of vacation pay, all types of accruals and bonuses accepted by the tariff agreement, which was approved in a particular enterprise, are taken into account.

Is experience important?

This question interests many workers. In fact, experience doesn't really matter.

The only thing that is taken into account when calculating the amount of vacation pay is work experience of less than 1 year at a given enterprise. In other cases, length of service is not taken into account.