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Dismissal: will I have to return the money (holiday)?

Hello! I work as an educator and part-time housekeeper, now I am on vacation until August 28, I decided to quit. I am interested in whether I will have to, if I have already received vacation pay for the wardrobe, as for the year worked, and the year of work will be fulfilled only on September 3? She worked as a teacher until the month of June. Thanks in advance.

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Zhvakina Veronika Alekseevna(08/07/2013 at 16:37:55)

Hello, according to Art. 121 of the Russian Federation, the right to use leave for the first year of work arises for the employee after six months of his continuous work this employer. By agreement of the parties, an employee can be granted paid leave even before the expiration of six months, so that in order to use yours and receive vacation pay, you did not have to wait a whole year at all. The procedure for dismissal during the vacation period is regulated by article 127 of the Labor Code of the Russian Federation. Upon dismissal, the employee is paid monetary compensation for all unused vacations. ConsultantPlus: note. The employer, in order to properly fulfill the obligation enshrined in the Labor Code of the Russian Federation to formalize the dismissal and pay the dismissed employee, must proceed from the fact that the last day of the employee’s work is not the day of his dismissal (the last day of vacation), but the day preceding the first day of vacation (Definition of the Constitutional Court of the Russian Federation dated January 25, 2007 N 131-О-О). At the written request of the employee, unused vacations may be granted to him with subsequent dismissal (with the exception of cases of dismissal for guilty actions). In this case, the day of dismissal is considered the last day of vacation. In the event of dismissal due to the expiration of the term, leave with subsequent dismissal may also be granted when the time of leave completely or partially goes beyond the term of this contract. In this case, the day of dismissal is also considered the last day of vacation. With subsequent dismissal at the initiative of the employee, this employee has the right to withdraw his application for dismissal before the day the vacation begins, if another employee is not invited to his place in the order of transfer. So you can safely write a statement about, you can send this statement by registered mail with acknowledgment of receipt, or simply hand it over against signature on the second copy. Good luck to you. If you liked the answer, please leave a review.

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Berezutsky Vladimir Nikolaevich(08/07/2013 at 16:41:43)

Good afternoon. In accordance with Article 137 of the Labor Code of the Russian Federation, deductions from an employee to pay off his debts to the employer can be made, in particular, when the employee is dismissed before the end of the working year in which he has already received annual paid leave, for unworked. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code. In this case, the employer has the right to make a decision to deduct from the employee's salary no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that the employee does not dispute the grounds and amounts of the deduction.

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Khromykh Larisa Georgievna(08/07/2013 at 16:49:02)

Hello! Upon termination employment contract with the employee, the employer is obliged on the day of his dismissal to pay the employee all the amounts due to him, including for all unused vacations (Articles 140 and 127 of the Labor Code of the Russian Federation). At the same time, if the employee has a debt to the employer, the latter has the right to withhold, firstly, the amounts to which the employee agreed to withhold, and secondly, the amounts that can be withheld without the consent of the employee, that is, on the basis of the "letter of the law". If an employee quits before the end of the working year in which he has already received annual paid leave "in advance", the employer has the right to withhold from his salary the amount for unworked vacation days, except for certain cases (Article 137 of the Labor Code of the Russian Federation). Deductions for these days are not made if the employee quits for a number of reasons provided for by the Labor Code of the Russian Federation. The purpose of withholding vacation pay from the employee's salary is to pay off his debt to the employer, because these amounts are not earned by the employee. They were issued to the employee with the condition of their subsequent working off, but the employee did not fulfill this condition. Since, having received unearned money, he, as it were, unjustly enriched himself, and the employer who issued them suffered a loss. The general provisions of Article 138 of the Labor Code of the Russian Federation are limited to deductions in order to provide the employee with a guaranteed livelihood. It says about the inadmissibility of exceeding the 20 percent amount of deductions for each. This rule will apply only to wages, and other payments that are not related to remuneration for work and the accompanying compensatory and incentive accruals will not fall under this restriction. The employee has the right to 28 days of basic paid leave only if he works for the employer during the working year continuously or in total (Article 121 of the Labor Code of the Russian Federation). Consequently, if an employee goes on vacation "early" in accordance with Article 122 of the Labor Code of the Russian Federation (i.e., when going on vacation not for the time actually worked, but earlier), part of the vacation pay paid to him will be an advance payment for future work in the organization. This advance payment in case of dismissal of the employee before the end of the working year in which he has already used the annual leave, is refundable. If the employee is not entitled to anything or the earnings accrued to him are not enough to pay off the debt, he should be formally invited to voluntarily reimburse the excess amount received. At the same time, the employee cannot be forced to deposit amounts of cash in the cash desk of the organization, including through delaying the issuance, registration of dismissal, etc. n. For any delay in completing the dismissal procedure, the employer bears in accordance with Article 234 of the Labor Code of the Russian Federation. If an employee voluntarily (but without coercion) is ready to deposit cash into the cash desk of the organization, then they are reflected in the accounting in the manner specified in the letter of the Ministry of Finance of Russia dated October 20, 2004 No. 07-05-13 / 10 (see below). In the event that the employee refuses to voluntarily repay the debt, the employer may refuse or act in judicial order. Thus, the employer will have the right to recover from you overpaid vacation pay, but the presence of debt cannot serve as an obstacle to your dismissal.

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Nikolai Nikolaevich(08/07/2013 at 23:44:13)

Hello dear!

You actually get 6 days unworked (July 29-31 is two days and August 1-3 is three days, and only 6 days), so the amount should not be large.

BUT THE MOST PLEASANT IN OTHER

WHEN CALCULATION OF HOLIDAYS, THERE IS SUCH A FEATURE. IF YOU REMAIN IN THE MIDDLE OF THE MONTH FOLLOWING THE MONTH IN WHICH YOU WENT ON VACATION LAST YEAR AND, for example, on the 16th, (that is, you stepped over the middle of the month), THEN IT IS CONSIDERED THAT YOU have worked your vacation pay (meaning the entire amount vacation pay for the whole year, despite the fact that they worked only until the 16th).

THEREFORE, MY ADVICE TO YOU IS TO CONTACT A FRIENDLY ACCOUNTANT, who deals with the accrual of vacation pay and wages, this QUESTION IS IN THEIR COMPETENCE. Here he will tell you whether you should pay or not. It all depends on the form of calculation, lawyers will not help here, unless they know accounting 1 "C".

Please leave a review! Thank you! With respect, Nicholai.

Mikhailovsky Yuri Iosifovich(08/07/2013 at 16:48:15)

Good afternoon! It is unlikely that someone will keep this money from you, they will talk, maybe they will try to ruffle your nerves. Quietly leave, do not forget to take all the documents you need. Article 83 of the Labor Code Russian Federation. Termination of an employment contract due to circumstances beyond the control of the parties An employment contract is subject to termination due to the following circumstances beyond the control of the parties: 1) conscription of an employee for military service or sending him to an alternative civilian service that replaces it; 2) an employee who previously performed this work, by decision of the state labor inspectorate or court; 3) non-election to office; 4) condemnation of the employee to a punishment that excludes continuation, in accordance with a court verdict that has entered into force; 5) recognition of the employee as completely incapable of labor activity in accordance with a medical report issued in accordance with the procedure established by other regulatory legal acts of the Russian Federation; 6) death of an employee or employer - individual, as well as recognition by the court of an employee or employer - an individual as dead or missing; 7) the onset of emergency circumstances preventing the continuation (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a body state power the corresponding subject of the Russian Federation; 8) disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract; 9) expiration, suspension of validity for a period of more than two months or deprivation of an employee of a special right (license, right to manage vehicle, the right to bear arms, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility for the employee to fulfill the obligations under the employment contract; 10) termination of access to state secrets, if the work performed requires such access; 11) cancellation or cancellation (recognition as illegal) of the decision of the state labor inspectorate to reinstate the employee at work; 12) bringing the total number of employees who are foreign citizens or stateless persons, in accordance with the allowable share of such workers established by the Government of the Russian Federation for employers engaged in certain types of work in the Russian Federation economic activity; Interrelated provisions of clause 13 of part one of this article, paragraph three of part two of article 331 and article 351.1 this document, are recognized as contradicting the Constitution of the Russian Federation by the Decree of the Constitutional Court of the Russian Federation of July 18, 2013 N 19-P: - to the extent that these legal provisions introduce an unconditional and indefinite ban on teaching activities, as well as other professional activity in the field of education, upbringing, development of minors, organization of their recreation and rehabilitation, medical support, social protection and social service, in the field of youth sports, culture and art with the participation of minors and, accordingly, imply the unconditional dismissal of persons who had a criminal record (as well as persons whose criminal prosecution was terminated on non-rehabilitating grounds) for committing other crimes specified in these legal provisions, except grave and especially grave crimes, as well as crimes against sexual inviolability and sexual freedom of the individual, without providing for the need to take into account the type and severity of the crime committed, the period that has elapsed since its commission, the form of guilt, the circumstances characterizing the individual, including behavior person after the commission of a crime, attitude to the performance of labor duties, as well as other factors that make it possible to determine whether a particular person poses a danger to the life, health and morals of minors, which disproportionately restricts the right of such persons to freely dispose of their abilities to labor and violate the balance of constitutionally significant values ​​- to the extent that these legal provisions provide for the mandatory and unconditional termination of an employment contract with an employee engaged in pedagogical or other professional activities in the field of education, upbringing, development of minors, organization of their recreation and rehabilitation, medical support , social protection and social services, in the field of children's and youth sports, culture and art with the participation of minors, if this person is subjected to criminal prosecution for the crimes specified in these legal provisions - until the resolution of the criminal case on the merits or until the completion of the proceedings in the criminal case, - to the extent that these legal provisions - in the sense given to them by law enforcement practice - allow the occurrence of the unfavorable consequences envisaged by them in connection with the commission by a person of an act that is not recognized at the time of the decision on the issue of dismissal or dismissal crime. By the Decree of the Constitutional Court of the Russian Federation of July 18, 2013 N 19-P, the interrelated provisions of paragraph 13 of part one of this article, paragraph three of part two of article 331 and article 351.1 of this document to the extent that these legal provisions - in their constitutional and legal sense in the system of the current legal regulation- means that to engage in pedagogical activities, as well as other professional activities in the field of education, upbringing, development of minors, organization of their recreation and rehabilitation, medical care, social protection and social services, in the field of children's and youth sports, culture and art with the participation minors are not allowed: - persons who have a criminal record for committing the crimes specified in paragraph three of part two of Article 331 and Article 351.1 of the Labor Code of the Russian Federation; - persons who had a criminal record for committing grave and especially grave crimes from among those specified in these legal provisions, as well as crimes against sexual inviolability and sexual freedom of the individual; - persons who had a conviction for committing other crimes specified in these legal provisions, as well as persons whose criminal prosecution on charges of committing crimes specified in these legal provisions was terminated on non-rehabilitating grounds, - insofar as, based on an assessment of the danger to life of such persons, health and morality of minors, the proportionality of the introduced restriction to the goals of state protection of the rights of minors is ensured, recognized as not contradicting the Constitution of the Russian Federation. 13) the emergence of restrictions established by this Code, other federal law and excluding the possibility of the employee fulfilling obligations under an employment contract on engaging in certain types of labor activity. Termination of an employment contract on the grounds provided for in paragraphs 2, 8, 9, 10 or 13 of part one of this article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (as vacant position or work corresponding to the qualifications of the employee, as well as a vacant lower position or lower paid job) that the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other areas, if it is provided for by agreements, an employment contract. An employment contract on the grounds provided for by clause 12 of part one of this article shall terminate no later than the expiration of the period established by the Government of the Russian Federation for bringing by employers engaged in certain types of economic activity in the territory of the Russian Federation the total number of employees who are foreign citizens or stateless persons into compliance with the allowable proportion of such workers. Article 137 of the Labor Code of the Russian Federation. Limitation of deductions from wages Deductions from an employee's wages are made only in cases provided for by this Code and other federal laws. Deductions from the employee's salary to pay off his debt to the employer can be made: to compensate for the unworked advance payment issued to the employee on account of wages; to pay off the unspent and not returned in a timely manner advance payment issued in connection with business trip or transfer to another job in another area, as well as in other cases; to return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee, in the event that the review body recognizes the individual guilt of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code) ; upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code. In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to decide on the deduction from the employee's salary no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of deduction. Wages overpaid to an employee (including in case of incorrect application or other regulatory legal acts containing norms) cannot be recovered from him, except in cases of: a counting error; if the body for the consideration of individual labor disputes has recognized the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code); if wages were overpaid to the employee in connection with his illegal actions established by the court. Article 138 of the Labor Code of the Russian Federation. Limitation on the amount of deductions from wages The total amount of all deductions for each payment of wages may not exceed 20 percent, and in cases provided for by federal laws, 50 percent of the wages due to the employee. When deducting from wages under several executive documents, the employee must in any case be retained 50 percent of wages. The restrictions established by this article do not apply to deductions from wages when serving correctional labor, collecting alimony.

Zubkov Sergey Vasilievich(08/07/2013 at 16:53:48)

Dear Anonymous! This is an extract from Article 137 of the Labor Code of the Russian Federation. Holds allowed...

upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code. Clause 8 of article 77 is a refusal to transfer to another locality, clause 1,2,4 of article 81 is the liquidation of an enterprise, downsizing, change of property owner, clause 1,2,5,6,7 of article 83 is conscription to / service, reinstatement of another employee, recognition as incapable due to medical conclusion, death, offensive emergencies.

Good luck and have a nice holiday. Sergey. My answer is your feedback.

Good afternoon! I ask for your help! I was granted leave, including 20 days in advance. For which vacation pay was accrued. On vacation due to circumstances, I decided to quit. Wrote a statement. The employer demanded a refund, for the days of vacation provided in advance and for the fact that I did not fully “take off” the days of vacation. That is, he quit in the middle of his vacation. Please tell me if this is legal. If I did not ask him to give me leave in advance and did not know that this would be the situation. Should I return the money. And what chances do I have to defend my position in court, what articles should I be guided by? Really looking forward to your reply.

Answer

Hello Bogdan.

Firstly, in accordance with Part 1 of Article 80 of the Labor Code of the Russian Federation, you have every right to terminate the employment contract by notifying the employer in writing two weeks in advance. You had the right to notify the employer of the dismissal both before and during the vacation. In case of vacation followed by dismissal, the last day of vacation is considered the day of dismissal. That is, for the fact that you allegedly did not take your vacation off, you do not have to compensate the employer for anything. The employer on the last day of your vacation, that is, on the day of dismissal, is obliged, in accordance with Article 140 of the Labor Code of the Russian Federation, to pay all the amounts due to you and return work book. In the event of a debt to the employer, he has the right to withhold it from the employee's wages. In accordance with Part 2 of Article 137 of the Labor Code of the Russian Federation, deductions from your wages to pay off debts to the employer can be made upon your dismissal before the end of the year in which you have already received annual paid leave, for unworked vacation days. Thus, since you went on vacation earlier than the time actually worked, that is, the vacation was provided to you in advance, this advance is subject to return by deduction from payments upon dismissal. It turns out that if you are already fired, then you can voluntarily return the amount overpaid to you for the vacation, but they cannot force you to reimburse it by transferring funds to the organization’s account or by transferring money to the cash desk. Of course, your employer can go to court, but this is extremely rare.

Hello!

It is impossible to say for sure whether the organization is right without knowing for which working years you were granted vacations and whether you used the vacation in advance.

But even if vacation pay is paid to you in advance, and when calculating this vacation pay, there is nothing to keep from, you have the right not to return the money.

The organization has the right to sue.

Consultant Plus

The employer, at the request of the employee who worked in the organization for 5 months, provided him with an annual paid leave of 28 days in advance. However, after the end of the vacation, the employee stated that he had found another job and wrote a letter of resignation on own will.

Does the organization have the right to demand from the employee the return of part of the vacation pay for vacation days provided in advance if it is impossible to deduct them from the employee due to insufficient (for this purpose) funds due to be paid to the employee upon dismissal?

The organization does not have the right to judicially demand from the employee the return of part of the vacation pay for vacation days provided in advance, if it is impossible to withhold them from the employee upon dismissal. This conclusion is confirmed, among other things, by the position of the Supreme Court of the Russian Federation. However, taking into account the presence in judicial practice of a different opinion on this issue, interested persons You should be prepared to defend this conclusion in court.

Rationale: In accordance with Art. 122 of the Labor Code of the Russian Federation, by agreement of the parties, an employee may be granted paid leave before the expiration of six months of his continuous work with this employer.

According to Art. 137 of the Labor Code of the Russian Federation, deductions from the employee’s salary to pay off his debt to the employer can be made, including when the employee is dismissed before the end of the working year in which he has already received annual paid leave, for unworked vacation days.

As follows from Art. 1109 of the Civil Code of the Russian Federation, wages and payments equivalent to it provided to a citizen as a means of subsistence are not subject to return as unjust enrichment, in the absence of bad faith on his part and a counting error.

Part 4 Art. 137 of the Labor Code of the Russian Federation contains a list of cases when wages overpaid to an employee can be recovered from him. The case under consideration is not one of them.

The Supreme Court of the Russian Federation, in Ruling No. 69-KG13-6 of October 25, 2013, noted that the current legislation does not contain grounds for recovering the amount of debt in court from an employee who used vacation in advance if the employer, in fact, during the calculation, could not make deductions for unworked vacation days due to insufficiency of the amounts due in the calculation.

A similar position was also previously expressed in the Ruling of the Voronezh Regional Court of December 6, 2011 N 33-6954, the Cassation Ruling of the Kamchatka Regional Court of September 15, 2011 in Case No. 33-1291 / 2011, the Appellate Ruling of the Arkhangelsk Regional Court of April 18, 2013 in Case No. -2304/2013.

However, we note that the jurisprudence on this issue was not so unambiguous. For example, the Samara Regional Court in Ruling dated March 14, 2012 N 33-2404 / 2012 noted that the employer has the right to recover in court the debt for unworked vacation days.

Thus, the organization does not have the right to judicially demand from the employee the return of part of the vacation pay for vacation days provided in advance, if it is impossible to withhold them from the employee upon dismissal.

This conclusion is confirmed, among other things, by the position of the Supreme Court of the Russian Federation. However, given the presence in judicial practice of a different opinion on this issue, interested parties should be prepared to defend this conclusion in court.

P.S. Dolgopolov

Legal company "Unovo"

Irina Shlyachkova

Hello!

1. It is difficult to say whether the employer's demand is legitimate. It is necessary to know for what period the vacation was used, but taking into account the requirements of the employer, it can be assumed that the vacation was used in advance. Only you write that you need to return it in full, and this already raises the question - perhaps the vacation was granted for a period that has not yet come.

But again, this is just a guess. Need more details.

2. In any case, the funds have been paid out, and accordingly, it is up to you to decide whether to return the funds or not. If you don't want it, don't return it. Let the employer file an appropriate claim in court and prove his right to claim.

The law gives the employer the right to deduct from earnings. That is, he will make settlements with you and has the right to withhold funds, and he has the right to demand the return of such money from you only by agreement of the parties or in court -

Labor Code of the Russian Federation, Article 137. Limitation of deductions from wages

Deductions from the employee's salary to pay off his debt to the employer can be made:

upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code.

In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to decide on the deduction from the employee's salary no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of deduction.

Concerning judicial practice, then as an option, check out:

Any employee of the organization has the right to leave. If suddenly there is such a situation in which a person needs to quit after a vacation, then this is possible. Article 127 of the Labor Code of the Russian Federation gives such a right to a person. In fact, there are two options for dismissal if you have not taken time off due leave. Either take a vacation and then quit, or get monetary compensation for unused vacation. There is also a situation when a person, already on vacation, decided to quit. Any employee has an obligation to notify the employer 14 days before the dismissal, so if the vacation is longer than 14 days, then the employee can do this by general rules. The final day of settlement will be the day of dismissal, when the work book is returned to the employee and the final settlement is made. It must be remembered that management does not have the right to call an employee from vacation before it ends in accordance with article 125 of the Labor Code of the Russian Federation.

In what cases is vacation granted with subsequent dismissal

This issue is resolved in agreement with the management, because providing an employee with rest before dismissal is a right, and not an obligation of the employer. The employer retains the right to either refuse to leave the employee with subsequent dismissal and pay compensation for unused vacation or provide only part of the vacation, and pay the rest in cash. This applies even to conscientious and disciplined employees. As for employees who have committed guilty acts, in principle they will not be granted leave, but will only be paid compensation. This becomes clear after reading Article 81 Labor Code RF. If an employee decides to use the vacation plus dismissal scheme, then you need to think about how to arrange all this in the accounting department.

How is vacation with subsequent dismissal

Vacation with subsequent dismissal is issued in the same way as a regular vacation, that is, according to the application + order scheme. You can write two applications, that is, first an application for leave is written, and then a letter of resignation is written. Or write one statement. The application is written in any form, it indicates the date from which the employee asks for leave, the period of leave and the phrase "I ask for leave with subsequent dismissal", it is also necessary to indicate the reason, for example, "of one's own free will." Based on a statement or statements personnel service or the accounting department issues an order to grant the employee a vacation. If the organization uses standard forms of orders, then in this case it will be necessary to issue two orders. Order for leave and order directly for dismissal:

• the standard form of a vacation order is form T-6 or T-6a;
• the order to terminate the employment contract is the T-8 form or the T-8a form.

There may be one order, but then the organization must develop the form of such an order itself and fix it in the accounting policy. The date of the vacation order is the last day before the vacation, and the date of the dismissal order is the last day of work. The last day of work of an employee is considered the day of his dismissal, however, in our case, the procedure will be different. In our case, the last day of the employee's work will be the day the vacation ends. Settlement with a person, respectively, will be made before the start of the vacation, on the last working day. If the vacation is granted according to the vacation schedule, then you do not need to write an application. Instead, the accounting department is obliged two weeks before the start of the vacation (possibly earlier) to send him a notice of vacation under his signature. There is no established form for a vacation notice, so firms must develop the form of such a notice themselves or decide how to notify the employee.

It is also necessary to make an entry in the work book, as well as issue it to the employee on the last working day. In the accounting department, the accountant will additionally draw up a note-calculation on granting leave to the employee in the T-60 form and a note-calculation on the termination of the employment contract with the employee in the T-61 form. If suddenly the company has developed a single form for leave with subsequent dismissal, then only it is filled out. In the time sheet in the form of T-12 or T-13, vacation days are displayed "FROM" or "09", if this additional leave, then "TO" or "10" is put. A mark is also made in the person’s personal card, and when issuing a work book, the employee signs in the work book record book. It must be said that the fact of vacation with subsequent dismissal is not reflected in the work book.

What payments are provided for the employee in this case

Before vacation with subsequent dismissal, the employee must pay:

• wages for days worked;
• holiday pay;
• compensation for unused vacation, if any (for example, the person decided to use part of the vacation).

Compensation is subject to both basic and additional leave. At the same time, you do not need to write any application for payment of compensation, because the payment of compensation for unused vacation is the direct responsibility of the employer. Vacation pay is paid three days before the start of the vacation, and the calculation upon dismissal is on the last working day. The required amounts can be paid to the employee in cash, as well as by transfer to bank card or personal account.

How can I withdraw a vacation application with subsequent dismissal

If suddenly there was such a situation in which the employee first decided to take a vacation, then quit, and then changed his mind. In this case, the legislation allows you to withdraw an application for a vacation with subsequent dismissal, but before the start of this period, because the employee will receive all payments and documents before the vacation, including a work book with a record of dismissal. In addition, the order to dismiss the employee will already be ready and signed, and in this case, the employee will have to get a job again. If a person, while on vacation, decided to quit, wrote an application, and then changed his mind, then in this case it is enough for him to withdraw his application from the accounting department.

Can an employer refuse to withdraw such an application?

According to the law, the employer may refuse to leave the employee if he later decides to quit and give permission only for dismissal and payment of compensation for unused vacation.

Labor Code of the Russian Federation); - reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2, article 83 of the Labor Code of the Russian Federation); - recognition of an employee as completely incapable of work medical report(Clause 5, Article 83 of the Labor Code of the Russian Federation); - death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as dead or missing (clause 6 of article 83 of the Labor Code of the Russian Federation); - the onset of emergency circumstances that prevent the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by the decision of the Government of the Russian Federation or the state authority of the subject (clause 7 of article 83 of the Labor Code of the Russian Federation) .

Vacation + dismissal? combine correctly

On this day, the employee should be given the salary and payments provided for by agreement with the employer in the employment contract (collective agreement).
At the same time, vacation pay must be paid, as it should be, 3 days before the start of the vacation.
9 st. 136 TC). In the event that, being in annual leave, the employee sends the employer a request for another vacation (this time with subsequent dismissal), the head of the enterprise has two scenarios for the development of events:

1. Due to the fact that providing leave with subsequent dismissal instead of making compensation payments for unused vacation days is a right, but not an obligation of the employer, the head of the company may refuse to satisfy this desire to the employee.

Returning vacation pay for a retired employee

After all, according to paragraph 2 of Art. 266 of the Tax Code of the Russian Federation, the debt becomes uncollectible after the expiration of the limitation period.
True, in this situation, you still have to adjust the tax base for income tax for the period of vacation pay (letter of the Federal Tax Service of the Russian Federation for Moscow).

Moscow dated June 30, 2008 No. 20-12/061148). By the way, officials believe that in the event of forgiveness or cancellation of debt (after the expiration of the limitation period), the former employee has taxable income.

This opinion was expressed in the letter of the Ministry of Finance of the Russian Federation dated June 17, 2014 No. 03-04-06 / 28915.

Of course, the employer will not be able to withhold personal income tax from him, but, according to financiers, he is obliged to submit information to the IFTS about the impossibility of withholding tax.

The position of officials is not indisputable, because personal income tax has already been withheld from the employee when paying vacation pay.

However, in order to avoid disputes with the IFTS, it is better to submit the relevant certificate.

Will I get vacation pay if I wrote a letter of resignation?

Unitek LLC 14.01.2016. After 2 months of work, Petrov A.I.

granted leave for 14 days. On May 20, 2016, he retired. In this case, his length of service, giving the right to leave, is 4 months and 7 days. The surplus is 7 days, which is less than half a month, so it is not taken into account in further calculations.

Thus it is Petrova A.AND. is equal to 4 months. Next, we determine the number of vacation days that fall on the hours worked. To do this, we divide the number of vacation days due to the employee per year (28 days) by 12 and multiply by the vacation period. This may not be an integer. In this case, the result obtained can be rounded up to an integer, but not according to the rules of arithmetic, but in favor of the employee (letter of the Ministry of Health and Social Development of Russia dated December 7, 2005 No. 4334-17). It is better to fix such an order in the local normative act organizations.

Employee quits while on vacation

If on this day the employee was not at the workplace, then payments are made no later than the next day after the dismissed person submits a demand for calculation (Art.

140 TK). If on the day of termination of the employment contract an amount of money was left for the dismissed employee to make a settlement with him, but he did not appear for the money, then these funds can be kept at the cash desk for only 5 days (clause 6.5 of the Directive of the Central Bank dated 11.03.2014 No. 3210- U). After the expiration of this period, the money is deposited and returned to the bank.

The employee, having received all vacation pay, decided to quit on the 1st day of vacation

In this order, you can cancel the previously issued order to grant the employee leave (in connection with his dismissal) (clause 1 of the order), set a new date for annual paid leave (up to and including the day of dismissal) (clause 2 of the order), resolve the issue of cancellation earlier issued note-calculation and recalculation of vacation pay (paragraph 3 of the order).

Service note. A sample memo is shown in the sample below.

We complete the calculations Legislation limits the cases when it is possible to recover a debt from an employee.

The case with the return of vacation pay for unworked vacation days falls into this list.

This rule is enshrined in paragraph 4 of part 2 of article 137 of the Labor Code of the Russian Federation. It should be noted that such deductions are the right, and not the obligation of the employer.

If there is nothing to withhold overpaid vacation pay, you must either sue the employee or “forget” about the debt.

Features of the dismissal procedure before vacation

• "Mandatory" leave at your own expense: what is silent about the Labor Code of the Russian Federation, No. 19
• I want to know everything: vacation reserve questions, No. 18
• How to calculate the length of service for vacation "for harm" in calendar days, № 18
• How to issue temporary worker for the period of vacation of the main employees, No. 17
• We pay northerners for travel on vacation, No. 15
• Northern Vacation Rules, No. 14
• I was going on vacation - I ended up on sick leave, No. 13
2015

1. Unauthorized leave = dismissal?, No. 24

The procedure for dismissal before vacation

Dismissal after a vacation of one's own free will is carried out as part of the usual procedure.

However, there are nuances, depending on when exactly the employee decided to stop labor Relations with an employer. We will analyze all the interesting points in the article. How to issue a dismissal immediately after a vacation The procedure for warning the employer upon dismissal after a vacation How is the calculation made upon dismissal after a vacation Features of dismissal of one's own free will after maternity leave How to issue a dismissal immediately after a vacation The procedure for dismissal after a vacation of one's own free will is no different from dismissal on the same basis at any other time. In order to quit on their own initiative, the employee must submit a written application to the employer.
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The employer refused, because the order contained personal data of employees who did not consent to their transfer to third parties.

Who was supported by the court? 02-03-2018 Making a review from vacation.

If an employee was accrued vacation pay and then he writes a letter of resignation

If the decision to write a letter of resignation was made by the employee after returning from vacation, then he can file this petition for termination of the employment contract on his own initiative already personally to the employer.

In addition, by agreement of the parties, dismissal may occur earlier, before the end of the 2-week period (part 2). In the same case, when an employee decides to quit, having previously taken unused vacation, to which he is entitled in accordance with Part 2 of Art. 127 of the Labor Code, he can apply for resignation at any time; in this case, it will not be necessary to work out 2 weeks, since the vacation time is included in the period of the so-called working off.

After all labor law there is no time limit between filing an application and going on vacation.

Forms N T-6 (T-6a) and T-60 were approved by the Decree of the State Statistics Committee of Russia dated 01/05/2004 N 1. Cancellation of the original order. In case of dismissal of an employee before the end of the vacation, the duration of this vacation changes, and the amount of vacation pay changes accordingly.

The legislation does not directly indicate the need to cancel the original vacation order and issue a new vacation order of a different duration.

However, given that the accountant needs documentary justification to recalculate vacation payments, it is better to issue the above orders and, on their basis, re-fill in the note-calculation for granting vacation. It will also be useful to draw up an accompanying memo.

Example 2. Let's use the condition of example 1. The employer does not object to the dismissal of the employee on June 5, 2013.

What actions should the employer take to dismiss V.I.