Calculation of time off upon dismissal. Calculation of compensation for time off upon dismissal Application for compensation for time off upon dismissal

M.A. Petrova, A.E. Gerasimova lawyers from FBK Legal
Article from the magazine "Financial and Accounting Consultations", No. 6, 2014

In another case, the court rejected the plaintiff’s arguments that additional days of rest if not used should have been paid upon dismissal, pointing out that these arguments are not based on the law, since these days are not paid additional days for vacation, an exhaustive list of which is contained in labor legislation.

Thus, we can conclude that there is no obligation of the employer to pay compensation for unused additional days of rest. However, it is worth keeping in mind that the employee has the right to contact the employer with a request to refuse additional days of rest and a request for additional payment for a holiday or day off worked.

We believe that since the Labor Code of the Russian Federation does not contain a corresponding prohibition, the employee’s new statement can be considered an intention to review and change the agreement to replace increased pay for a worked holiday or day off with another day of rest. Despite the fact that the employee’s will was initially aimed at receiving an additional day of rest, and not increased pay, we nevertheless believe that the organization does not have the right to refuse the employee’s request.

Ensuring the right of every employee to rest, including the provision of days off and non-working holidays, as well as ensuring the right to timely and full payment of wages are one of the principles of legal regulation of labor relations (paragraphs 5, 7 of Article 2 of the Labor Code of the Russian Federation). The employer’s obligation to compensate for the employee’s involvement in work on a day off with double pay or single pay with the provision of another day of rest, in particular, is one of the guarantees of these principles. Replacing double pay with single pay with the provision of an additional day of rest, based on the meaning of Art. 153 of the Labor Code of the Russian Federation, is possible only if there is a corresponding expression of will of the employee. An application for refusal of additional days of rest with a request for additional double payment, in fact, indicates a lack of expression of will, and therefore, we believe, the employer has an obligation to double payment.

Procedure for granting an additional day of rest. As follows from judicial practice, the employee’s desire to replace increased pay with an additional day of rest must be expressed in writing, in particular in the form of a statement. The courts also come to the conclusion that a record of familiarization with the order to replace a day off with another additional day of rest does not replace the legally required expression of the employee’s wishes in the form of a written statement.

It should be borne in mind that the employee is not provided with a number of hours proportional to the time worked on a weekend or non-working holiday, but a full day of rest.

It is also important to take into account that wages for the month in which the employee took a day of rest must be paid in full.

If a preliminary agreement has been reached with the employee to provide another day of rest, then the order to engage the employee to work on a day off indicates the specific date of the day of rest provided in exchange for the day off on which the employee was brought to work.

Since the terms and procedure for using the granted day of rest for working on a day off are not defined in the Labor Code of the Russian Federation, the parties have the right to agree on the provision of another day of rest at any time, including in the month following the month in which the employee worked on a day off or non-working holiday day.

By giving an employee the opportunity to use another day of rest for work on a day off, the Labor Code of the Russian Federation does not establish the right to use such rest at a time convenient for the employee, although it does not prohibit it. Therefore, in order to avoid disagreements between the employee and the employer about the possibility and timing of providing rest days, it is advisable to reach an agreement in advance. One of the acceptable options is to establish a uniform procedure for using additional days of rest for working on a day off in a local regulatory act, for example, in the internal labor regulations (Articles 189-190 of the Labor Code of the Russian Federation).

We also believe that in order to minimize the risks of the courts interpreting the employer’s actions as imposing an additional day off in exchange for double pay, it is possible in each specific case to file applications from employees for an additional day of rest.

See the Determination of the Moscow City Court dated November 27, 2013 in case No. 4g/1-11476 (in this case, the court considered the issue of compensation for unused time off for working on weekends).

See the appeal ruling of the Court of the Khanty-Mansiysk Autonomous Okrug - Ugra dated October 29, 2013 in case No. 33-4652/2013.

See the appeal ruling of the Court of Khanty-Mansi Autonomous Okrug - Ugra dated October 29, 2013 in case No. 33-4652/2013.

Upon dismissal, money is paid for the period actually worked, as well as for vacation. But what about accumulated time off? The article discusses examples of calculating pay on a day off and gives recommendations on how to demand your rightful money from management.

What to do if you have unused weekends left

At enterprises, overtime work is compensated by providing additional days off (time off). In the case when an employee writes a letter of resignation, he may not have time to take all his days off. Upon termination of the employment relationship, unused days off are compensated.

But there are a lot of nuances: for example, in case of voluntary dismissal, payment of time off occurs only when this right has been documented for the employee. For example, an employee was forced to go to the office on a holiday. In this case, a document is drawn up indicating that this shift must be paid.

If the employee does not have documentary evidence, payment of unused time off depends only on the integrity of the employer.

Below are several options for the development of events.

Option 1. There were working days on weekends and holidays, but they were not recorded in any way. As mentioned earlier, in this case the employee cannot count on a guaranteed payment. That's why:

• you can just quit and forget about time off;
• You can first take unused days off and then write a letter of resignation.

In this case, you can advise the employee to be more attentive to his work in the future and at the next place of work to record all additional hours spent at work on the time sheet.

The entire amount should be paid to the employee on the day of dismissal, along with wages, as well as compensation for unused vacation and other payments.

Is time off paid for work on weekends and holidays according to the Labor Code of the Russian Federation upon dismissal?

According to Article 153 of the Labor Code of the Russian Federation, when working on holidays and weekends, an employee has the right:

• or double payment for the time worked;
• or for a one-time payment for time, but with the provision of additional days for vacation.

Moreover, if an employee chooses the second option, it does not matter how many hours he worked on a day off - he is provided with an additional day.

The employee can choose additional unpaid rest time or monetary compensation for the hours he overworked. The calculation is carried out using a coefficient of 1.5 for the first two hours of processing and 2.0 for the subsequent ones.

Overtime within the shift schedule is regulated by Art. 301 Labor Code of the Russian Federation. The employee has the right to count on a day of rest between shifts, which will be paid. regulates the absence of an employee from his workplace if he donated blood on that day. At the donor center, the employee is given a certificate stating that the donor has the right to pay for this working day, as well as paid time off the next day, which, at the donor’s request, can be attached to the main vacation.

During dismissal, compensation is paid to the employee. The employer is obliged to pay money for the period actually worked, as well as for unused vacation. These two payments are found everywhere, but there are also those that arise only in certain situations. This also includes the situation with payment of accumulated time off.

At many enterprises, work on weekends or beyond the norm is compensated by providing time off. And a large number of workers quit before they have used up the accumulated time. These unused days upon termination of the employment relationship must be compensated to the ex-employee. And although this issue is not clearly regulated by the Labor Code of the Russian Federation, in order to avoid problems with the labor inspectorate, it is recommended to pay the funds in the same way as this should have happened if additional vacation days had not been provided.

Are time off paid upon dismissal?

It is possible to pay for time off upon dismissal at one's own request only if the basis for its occurrence has been documented. For example, if a person worked a holiday, and there is an order according to which this shift was paid in a one-time amount and an additional day of rest was provided, then the unused time will have to be paid.

If there is no documentary evidence, then everything will depend on the integrity of the manager. The employee will definitely not have to count on payment, but the employer may allow the employer to take the days off required by law.

Dismissal with time off

Among the duties of employees is a 14-day work period if they leave the company of their own free will. Many of them take unused vacation time for this period. Also, this opportunity is relevant not only if there is a duty to work off. Vacation followed by dismissal is a fairly common procedure. For it, according to Article 127 of the Labor Code of the Russian Federation, it is necessary that the following conditions be met:

• a correctly written and submitted application by the employee;
• coincidence of vacation time with the approved schedule;
• The reason for dismissal is the employee’s non-culpable actions.

There is no need to submit two applications - to quit and to go on vacation. One contact to the employer indicating both requests is sufficient. The employer himself must issue two orders and properly fill out the work book of the dismissed person.

Time off for work on weekends and holidays according to the Labor Code of the Russian Federation upon dismissal

Issues related to labor during weekends and holidays are regulated by Article 153 of the Labor Code of the Russian Federation. According to its content, the employee should be given two scenarios to choose from:

• double payment for the time worked;
• one-time payment for time with the provision of additional unpaid days off.

In the second case, the length of time the employee worked does not matter - he must be given a full day of rest. If these days are unused, then the calculation is carried out in accordance with the double payment rule. Since the time worked has already been paid in a one-time amount, upon termination of the contract (dismissal), an additional amount of the same amount will be paid.

Calculation of time off upon dismissal

All unused time off upon termination that is officially documented must be paid in accordance with what it was awarded for. For example, if an additional day of rest is available to an employee for overtime work, then Article 152 becomes relevant. Labor Code of the Russian Federation. It says that the tariff rate for the starting two hours above the norm is multiplied by 1.5, and for the rest of the time by 2.

In the case of working on weekends, the actual time can be immediately multiplied by two. Therefore, you need to carry out your own calculation for each individual bonus day. The simplest option is a non-financial calculation. Subject to an agreement between the employee and the employer, the former can simply take the accumulated number of days off before officially resigning.

Application for leave with subsequent dismissal

Below is a sample application for leave with subsequent termination of the employment relationship. If the employee has accumulated unused unpaid days, then the application is drawn up in a similar way. It is submitted to the name of the employer and the text indicates the desire to take the required days off and quit immediately after that. At the end there is a date and signature.

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When getting a job, a person must certainly know his responsibilities. But, along with this, you should not forget about your rights. One of the rights of workers under the Labor Code of the Russian Federation is the right to time off. In order to take advantage of the required additional day off, you should know who is entitled to it under labor law, and under what circumstances.

For your information

Previously, this concept was included in the labor code: time off was assigned to those who work more than indicated in their job responsibilities. The changes made to the Labor Code of the Russian Federation also affected this point. Now an employee has the right to receive legal additional days off only in a number of certain cases.

What is time off and who has the right to count on it?

Time off is considered a day off that an employee receives for completing any overtime tasks. This day does not coincide with scheduled weekends. It is often attached to vacation in order to extend it. Also, according to the Labor Code of the Russian Federation, time off can be taken during the working week, by agreement of the employee and the employer.

A worker can receive time off if his work exceeds his job responsibilities. There are several similar situations.

• If he worked more than the allotted time.
• If you went to work on your legal day off.
• Helping your employer during your vacation.
• For excellent performance of your job duties, as an encouragement.
• If the intensity of work exceeded acceptable standards, as compensation for hard work.
• For performing work that is not included in the list of the worker’s labor duties and was performed on a voluntary basis at the request of the employer.

All of these examples can serve as reasons for taking time off. According to the Labor Code of the Russian Federation, an employee has the right to choose in what form he will receive remuneration for work in excess of the norm. Having started work on a day off, a worker has the right to count on double pay or receive money in a single amount, as for a regular working day, but with the right to take a day off at any time at his own discretion. However, this rule applies with a 100% guarantee only if the overtime is documented, since the concept of time off is excluded from the Labor Code of the Russian Federation.

In what cases does an employer have no right to deny a subordinate time off?

In the Labor Code of the Russian Federation, there are reasons why an employer is obliged to give an employee time off. These include:

• Wedding.
• Funeral.
• Blood donation.
• For hours worked recorded on the timesheet.
• For going out on days off as ordered.

Replacing time off with cash compensation

By agreement with management, you can arrange additional days off and allotted vacation in cash. This is done when the enterprise has enough funds to make additional payments and there is an urgent need for the employee to fulfill his job duties. An employee cannot demand a cash payment instead of time off according to the Labor Code of the Russian Federation: according to the law, the manager has the right to refuse payments, allowing his subordinate to take the leave he is entitled to by law.

The employer does not have the right to replace vacation with compensation in a number of individual cases:

• You cannot refuse leave, replacing it with compensation, even with the consent of the parties, if the employee is pregnant.
• You cannot replace vacation with payments for more than two years in a row: the employee must use vacation at least once during this time.
• If work activity is carried out in harmful or dangerous conditions.
• If labor activity is carried out by a person who has not reached the age of majority: in our country, this definition means age from 18 years.

These four cases are a legally certified reason in the labor code for refusal of cash payment in lieu of vacation. A manager cannot infringe on the rights of his subordinates; for this he will have to suffer appropriate punishment. Even despite the fact that this happens by mutual consent of the parties.

Additional Information

Another example when it is impossible to replace vacation with monetary compensation: according to the law on the protection of persons who were exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant, the vacation they are entitled to cannot be converted into a monetary equivalent.

When are time off granted?

The time off according to the Labor Code of the Russian Federation, which is due for additional duties assigned to an employee or for carrying out work activities during non-working hours, is assigned differently, depending on the specific situation. For example, citizens working on a rotational basis, in accordance with the Labor Code of the Russian Federation, have the right to additional days off attached to their rest time. Also, shift workers have the right to receive monetary compensation for overtime. In their case, overtime has a special character: those working on a rotational basis work for months at a time for 10 - 12 hours, having at best 1 day off per week. Such processing imposes an obligation on management to adequately compensate for significant processing. This is necessary for workers to regain strength before the next shift.

Additional Information

Unlike days off, which are determined by calendar state days or compiled according to the needs of a given particular enterprise, time off is more difficult to regulate. Usually they are provided to an employee when necessary: ​​when he needs to leave for family reasons. The time for this is agreed upon between the boss and the subordinate, taking into account the wishes of the worker and factors of production necessity.

How to arrange time off?

The Labor Code does not provide for compensation for overtime; for this reason, there is no specific form that can be filled out to document time off at any enterprise. Each organization has the right to independently decide what the registration procedure will be. The employee carrying out office work must record all cases of overtime work by employees, their reasons and the form of compensation.

If a worker wishes to take advantage of an unofficial day off for overtime, he must write an application.

In addition to the application for time off under the Labor Code of the Russian Federation, the employer must issue an order indicating the time for providing the vacation and the reason. Otherwise, if an accident occurs to an employee while he is away from work, the employer will bear responsibility for it. Official registration is not carried out if the employee’s employment contract already indicates his additional day off. In this case, there is no need for an order for time off: the subordinate’s absence from the workplace has already been documented. Example of an order:

In a number of individual situations, processing is the direct responsibility of the worker.

• Elimination of the consequences of disasters or other consequences of destructive force that pose danger and harm to others.
• Prevention of criminal activity, the consequences of which may affect the lives, health and well-being of citizens.
• Performing work that is necessary and included in labor duties when a state of emergency is introduced in a certain area or country.

An employee's refusal to perform his or her duties in one of these situations or leaving without permission will entail serious consequences. This could be disciplinary action or... Most often, this is acceptable for military personnel liable for military service during the introduction of martial law. Also, this is suitable for employees of the army, police, Ministry of Emergency Situations, and doctors.

Time off at your own expense according to the Labor Code of the Russian Federation

If an employee urgently needs time off, he has the right to request leave at his own expense. There can be many reasons for this.

• Illness of a relative, when personal care for the patient is necessary.
• The need to leave for some time for personal reasons.
• Poor health caused by a busy work schedule: the desire to rest without using sick leave.
• The need to devote more time to part-time work: reporting period, inspections.
• September 1, when you need to accompany the children to school and personally attend the assembly.
• Disciplinary meetings of parents at school.
• A situation where the director of a school where a worker’s children are educated insists on his personal presence during working hours.
• Wedding of children, relatives, close friends.
• Funeral of relatives and loved ones.
• Serious emotional distress when the employee is mentally unable to perform his duties.
• Other personal circumstances.

All this may make the employee want to ask for leave at his own expense. The immediate supervisor has the right to refuse, since none of these reasons legally restrict his actions. The refusal of management to take leave under the Labor Code of the Russian Federation at their own expense for one or more days may be influenced by the following circumstances:

• An employee often goes on sick leave and takes time off.
• By necessity.
• Period of inspections, submission of reports.
• A situation where a particular employee is indispensable due to his skills and job responsibilities.
• Frequent violation by an employee of internal regulations.
• The personal attitude of a manager towards a subordinate, related to his behavior, quality of work or other circumstances.

Any of the above reasons may contribute to management’s decision to deny an employee additional leave at his own expense. Since the concept of time off is not in the labor code of our country, the employee’s actions are very limited.

In this case, it is better to leave a few days from your vacation, starting duties ahead of schedule. The employee has the right to use unused vacation days at his own discretion at any time.

Another way out of the situation: official registration of processing. As mentioned above, for this purpose an order must be drawn up: this is beneficial to both the employee and the management team. This document will help management avoid liability if an employee is injured during unregistered time off, and the employee will be able to use compensation for time off under the Labor Code of the Russian Federation at his own discretion: choose a double payment amount or a one-time standard payment for working time with the possibility of time off. When there is such an order, the employee can be sure that his request to leave work for personal reasons will not be refused. In addition, this will not be a vacation at your own expense, but a paid well-deserved day off.

A worker can take time off at his own expense for no more than 14 days a year. They can be connected or scattered on different dates throughout the year. If the number of unpaid days off exceeds the above-mentioned period, these days are deducted from his length of service. This fact will have an impact on the formation of pension payments in the future. All days in excess of 14 legally permitted days off will be removed from the work experience.

Taking a vacation at your own expense

If the time off is not formalized, according to the labor legislation of the Russian Federation it is considered absenteeism. Both parties may be held responsible for this: if something happens to an employee, the organization whose report card states that the employee was at the workplace will be responsible. An employee can easily receive official absenteeism with a warning and entry into his personal file. Even if there was verbal permission from the authorities. This is a delicate point that is best documented on paper to avoid problems.

If it is necessary to leave the workplace for several days without pay, the employee writes a statement, which is signed by the head of the organization. Afterwards, based on this document, an order is drawn up, which the employee must read and sign on it. The order will be in the employee’s personal file.

Sample application for leave at your own expense:

What to do if an employee needs to take time off, but management refuses?

A situation where an employer does not take into account the wishes of an employee, acting in the interests of production, is not uncommon. Most often, he has good reasons for this related to production needs. An employee who finds himself in such a situation has three possible scenarios:

Option #1.

The employee agrees with the manager and remains at the workplace to fulfill his duties. This option is acceptable if the need for leave for one or several days is not urgent, and the situation at the workplace really requires his personal presence at the designated time. When a job is important and loved, the employee will take into account not only his own needs, but also the needs of the team and management in performing his job duties.

Option No. 2.

The employee and his manager agree on a compromise way out of the situation. This could be a transfer of time off to a period when its absence will not affect the work process. Or an employee goes part-time to fulfill his duties and go about his business. It is also possible to agree that the necessary work activity will be carried out by another employee or an outside person. This is possible in a number of individual cases.

In this situation, both parties compromise. This will help not only maintain warm relations between employee and subordinate, but also get out of a difficult situation with the least losses on both sides. By making a compromise, the employer makes it clear that not only the employee’s work is important to him, but also himself. By this act he shows his disposition. It would be unreasonable not to accept such an offer unless there are serious reasons for doing so.

Option #3.

If an employee still needs to leave the workplace on the day when he is supposed to be present according to his timesheet, there is a loophole. If management refuses time off or does not compromise for one reason or another, the employee can become a blood donor that day. This is the only option under the Labor Code of the Russian Federation when his absence from the workplace will be documented. This will help him avoid absenteeism being entered into his personal file.

What you should not do if your boss denies you leave at your own expense:

• Making a scandal will only ruin relations with your superiors and put you in a bad light. There will be no productive help from performing this action.
• Writing a resignation letter in the heat of the moment will cause you to regret it later. Such a decision should be made without emotion, with a cool head, with consideration of the consequences and further actions.
• If you leave on your own, despite the refusal of your superiors, absenteeism will be immediately entered into the employee’s personal file. Three absences are grounds for dismissal under the article, after which it will be very difficult to get a job.

Any issue can be resolved peacefully. Do not forget that the manager is obliged to act in the interests of production, otherwise he will be replaced in his position by another, more efficient employee. An employee who has received a refusal to allow him to go on vacation at his own expense or to be given time off under the Labor Code of the Russian Federation should understand this and not take the refusal personally.

Thus, when working at a particular enterprise, you should be aware of your labor rights so that, if necessary, you can use this to your advantage. Employers often take advantage of the fact that their subordinates do not know their rights. This should not be abused either, since many professions require overtime from the very beginning. This is due to the specifics of job responsibilities. First of all, this applies to all military and medical workers. Such professions are not just a job, but a way of life. This needs to be understood before enrolling in one of these specialties. Otherwise, you need to know your rights and apply them as necessary. This is why the Labor Code of the Russian Federation exists.