The question of whether unused vacation “burns out” if it is not taken off remains open. While officials assure workers that unused vacations will not “burn out,” courts in some regions refuse to recover compensation for unused vacations for citizens who have just quit their jobs due to missing the deadline for filing a lawsuit.

02.12.2015

After the Russian Federation ratified in 2010 Convention International Labor Organization No. 132 on paid holidays (Geneva, 06/24/1970 (hereinafter referred to as the Convention); ratified Federal law dated 01.07.2010 No. 139-FZ), there was a need to re-answer the question of at what point an employee is deprived of the opportunity to exercise his right to unused vacation.

The reason for the debate was the provision of Article 9 of the Convention, according to which a continuous part of the annual paid leave(at least two weeks) is granted and used no later than within one year, and the balance of annual paid leave - no later than within 18 months after the end of the year for which the leave is granted.

This provision of the Convention has been interpreted by many to mean that after 18 months, the vacation days remaining from the working year “burn out.” This was followed by numerous consultations and interviews, in which not only independent experts, but also officials expressed the idea that there were no grounds for such a conclusion. Thus, on the website of the electronic service “Onlineinspection.RF” created by Rostrud, in the “Popular Questions” section, the following answer is posted: “Even if for some reason leave was not granted to the employee for several years, no “burning out” of leave occurs. The employer must provide the employee with all unused vacation leave."

Deputy Head of the Federal Service for Labor and Employment Ivan Ivanovich Shklovets, during the All-Russian online seminar held by the GARANT company in August 2015, confidently stated that unused vacations do not “burn out”; employers are held accountable for accumulated vacations and are obliged to provide the employee with all accumulated vacations (transcript of the speech was published in the journal “Actual Accounting”, No. 8, August 2015).

And yet, workers who have unused vacations for working years that ended more than a year and a half ago today cannot be sure that they will be able to obtain monetary compensation for them upon dismissal. As it turned out, in some constituent entities of the Russian Federation, courts of general jurisdiction, referring precisely to the provisions of Article 9 of the Convention, refuse dismissed employees to satisfy such demands. It is enough for the employer to declare in court that the employee has missed the statute of limitations.

Why does unused vacation “burn out”?

The reasoning part of some judicial acts is as follows. According to Article 392 According to the Labor Code, an employee has the right to go to court to resolve an individual labor dispute within three months from the day he learned or should have learned about a violation of his rights. By virtue of the provisions of the Convention, the employee must take annual paid leave within 18 months after the end of the year for which it is due. Thus, a claim for compensation for unused vacation can be filed with the court only within three months from the end of the specified 18-month period ( definitions Moscow City Court dated August 14, 2015 No. 33-28958/15, dated July 13, 2015 No. 4g-6930/15, Ulyanovsk Regional Court dated July 14, 2015 No. 33-2923/2015).

Based on the same rules, but more common, the following formulation of the conclusion about the claim period is: for claims for compensation for unused vacations, such period in accordance with paragraph 2 of Article 9 of the Convention is calculated equal to 21 months after the end of the year for which the vacation is granted (18 months . + 3 months) ( definitions Moscow City Court dated 06/02/2015 No. 33-14982/15, Court of the Khanty-Mansiysk Autonomous Okrug dated 04/28/2015 No. 33-1904/2015 , Supreme Court of the Republic of Karelia dated March 27, 2015 No. 33-1227/2015, Supreme Court of the Republic of Bashkortostan dated March 3, 2015 No. 33-3295/2015).

You can also find an option according to which the deadline for claims for compensation for unused vacations is 18 months after the end of the year for which the vacation is granted ( definitions Moscow City Court dated May 26, 2015 No. 33-11576/15, Supreme Court of the Republic of Bashkortostan dated April 7, 2015 No. 33-5543/2015 ).

In all of these cases, the courts do not in any way correlate the beginning of the limitation period with the day of dismissal. The plaintiffs' attempts to convince the court of the need to resolve this issue on the basis articles 140 And 127 of the Labor Code in the given examples were not crowned with success: according to the judges, such an approach is based on an incorrect interpretation of the rules of substantive law, the provisions of the Convention on the limitation period for claims for compensation for unused vacations have priority over Russian law.

The question of the statute of limitations on claims for compensation for unused vacation remains open

This trend in judicial practice has attracted the attention of the scientific community. The issue was discussed at the International Scientific and Practical Conference “Systematics in Labor Law and Social Security Law (First Gus Readings).” At the conference, an Appeal to government authorities was adopted (published in the journal “Labor Law in Russia and Abroad”, No. 3, 2015), in which scientists talk about the inadmissibility of such an interpretation of the Convention and its use to worsen the situation of workers and violate their constitutional right to rest, and also ask for assistance in conveying their position to the highest court.

It must be said that quite recently, and after the Convention entered into force for the Russian Federation ( Convention International Labor Organization No. 132 came into force for the Russian Federation on September 06, 2011), the same courts that are now refusing workers, sought compensation in their favor for all unused vacations, regardless of the period for which they were due, and referred to article 127 Labor Code (rulings of the Ulyanovsk Regional Court dated May 28, 2013 No. 33-1783/2013, Moscow City Court dated November 22, 2012 No. 11-8853/12).

It is not clear why the courts began to change their position and, most importantly, why the one and only general provision of the Convention is perceived by them as an alternative to a whole series of special rules of labor legislation. According to the author, based on an incorrect interpretation of the law is precisely the approach in which the limitation period for a claim for compensation for unused vacation is derived from the provisions of the Convention and does not correlate in any way with the day of dismissal.

First of all, it is necessary to determine the status of the Convention as a whole. From a legal point of view, the Convention is an international treaty of the Russian Federation. If an international treaty of the Russian Federation establishes rules other than those provided for by labor legislation and other acts containing labor law norms, the rules of the international treaty are applied ( Art. 10 Labor Code of the Russian Federation). In the same time ( clause 3 art. 5 Federal Law of July 15, 1995 No. 101-FZ) provisions of officially published international treaties of the Russian Federation, which do not require the publication of internal acts for application, are directly effective in the Russian Federation. To implement other provisions of international treaties of the Russian Federation, relevant legal acts are adopted.

As explained by the Plenum of the Supreme Court of the Russian Federation (clause 3 of the post of the Plenum of the Supreme Court of the Russian Federation of October 10, 2003 No. 5), signs indicating the impossibility of directly applying the provisions of an international treaty of the Russian Federation include, in particular, references to the obligations of states contained in the treaty -participants in amending the domestic legislation of these states. When the court considers civil cases, an international treaty of the Russian Federation is directly applied, which has entered into force and become binding for the Russian Federation and the provisions of which do not require the issuance of internal acts for their application and are capable of generating rights and obligations for subjects of national law. The need to take these clarifications into account when courts resolve labor disputes was drawn attention to in another resolution of the Plenum of the Supreme Court of the Russian Federation (clause 9 of the post of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

Let us now turn to the text of Article 1 of the Convention: the provisions of this Convention shall apply through national laws and regulations, to the extent that they are not otherwise applied through collective agreements, arbitration and court decisions, government wage-setting mechanisms or any other similar instruments in accordance with the practice of a given country and taking into account existing conditions therein. In other words, the Convention requires the issuance of a domestic act for its application, unless national rules provide for another way of giving it effect. When reading the English text of the Convention, the meaning of Article 1 becomes even more obvious. Since the Russian legal system, in principle, does not allow the direct application of international treaties with such a clause, Russian courts, when resolving labor disputes, cannot be guided by the provisions of the Convention and must rely on Labor Code.

However, even if we assume that the Convention can be applied directly, for this it must establish different rules than those provided for by labor legislation on the same issue. According to the author, it is quite obvious that Article 9 of the Convention only establishes the boundaries of the period during which the leave must be used, and in terms of the subject of its regulation intersects only with parts three and four Article 124 Labor Code. Article 9 of the Convention says nothing about what happens to the right to leave at the end of this period, and especially about the fact that the employer must, at the request of the employee, pay compensation for leave during this period.

From the point of view of how Labor Code, and the Convention, the actual use of vacation and receipt of monetary compensation for it are different ways of exercising the right to vacation. Regarding the replacement of vacation with monetary compensation, the Convention contains separate rules. Article 12 prohibits the parties from agreeing not to use the minimum annual paid leave and replacing it with compensation. And Article 11 states that, after termination of employment with this employer, the employee is provided with paid leave, proportional to the duration of the period of his work for which he was not granted leave, or is paid monetary compensation, or is given an equivalent right to leave in the future. At the same time, no restrictions have been established on the duration of the period in proportion to which the number of vacation days allotted to the employee is determined. It turns out that the Convention does not provide for other rules on the issue of monetary compensation. She, like Labor Code, in principle, does not allow the replacement of the main vacation with monetary compensation during the period of validity of the employment contract, but obliges the employer to compensate all unused vacation days with money only upon dismissal. This means that the employee’s right to receive monetary compensation for vacation cannot be violated, and the period allotted for judicial protection of this right cannot begin earlier than the day of dismissal.

If we assume the opposite and assume that the claim for compensation for vacation filed during the period of work is subject to satisfaction, this will mean that the court can force the employer to do what it agrees to do. Labor Code and the Convention is not his responsibility, and is partially impossible even by mutual agreement of the parties. Refusal of a claim filed on the last day of the three-month period, due to the fact that the employee who continues to work is not given the right to demand that vacation be replaced with monetary compensation, deprives the employee of the opportunity to receive such compensation at all, since immediately after dismissal it will be too late to file such a claim. Both outcomes of the case, to put it mildly, do not really correspond to the principles of Russian justice.

The approach according to which the employee, until the moment of dismissal, retains the right to all vacations that were not provided to him in a timely manner, is also common in judicial practice. The courts that adhere to it note that the existence of a normatively fixed period for the actual provision of leave does not mean that from the moment of its violation by the employer, a three-month period must be calculated for filing a claim in court to recover monetary compensation for this leave. Taking into account articles 127, 140 And 392 According to the Labor Code, this period for all vacation days is three months from the date of dismissal (rulings of the Khabarovsk Regional Court dated July 1, 2015 No. 33-4129/2015, Sverdlovsk Regional Court dated May 22, 2015 No. 33-7641/2015, Chelyabinsk Regional Court dated April 6. 2015 No. 11-3310/2015, Orenburg Regional Court dated January 21, 2015 No. 33-433/2015; post. Primorsky Regional Court dated March 2, 2015 No. 4G-18/2015).

The attitude towards missing the deadline for granting leave, in the author’s opinion, should be the same as to violating the deadline for paying wages. The violation in the form of non-payment of accrued wages is of a continuing nature, and the employer’s obligation to timely and in full pay wages to the employee, and especially delayed amounts, remains throughout the entire period of validity of the employment contract, therefore, until the employment relationship is terminated, the period for an appeal to the court for the specified amounts cannot be skipped (clause 56 of the resolution of the Plenum of the RF Armed Forces dated March 17, 2004 No. 2). Based on the same logic, the statute of limitations for all vacation days once included in the vacation schedule, but not provided, cannot be missed during the entire period of work.

And finally, the last argument, the use of which would not be necessary if not for the existing practice of interpretation and application of the Convention. According to the Constitution of the International Labor Organization (clause 8 of article 19 of the Constitution of the International Labor Organization of 1919 (as amended at the ILO conference in Montreal in October 1946)), in no case should the ratification of any convention by any member of the ILO be considered as affecting any law which provides more favorable conditions for the workers concerned than those provided for by the convention. Therefore, having nevertheless seen in the Convention more stringent than in Labor Code, the scope of the limitation period for a claim for compensation for unused vacations, it is necessary to conclude that it worsens the situation of the employee, and in this regard, abandon its application in favor of Russian law.

Some courts currently refuse to recognize the statute of limitations on a claim for compensation for vacation as missed earlier than the dismissal occurs, using almost the entire range of arguments outlined above (rulings of the Ryazan Regional Court dated July 15, 2015 No. 33-1558/2015, Samara regional court dated 07/02/2015 No. 33-6641/2015, Smolensk regional court dated 06/09/2015 No. 33-2163/2015).

It is obvious that now the word belongs to the Supreme Court of the Russian Federation, which is authorized to provide clarifications to the courts in order to ensure uniform application of legislation.

Now the main question that worries accountants in connection with changes in vacation pay legislation is whether unused vacations will expire from January 1, 2019? Let's answer this question.

Could vacation days be lost or burned in 2019?

The employee has not been on vacation for two years in a row. Are vacations expiring?

Let’s say an employee has not been on vacation for two years in a row. Are vacations expiring?

In this case, the employer violates labor laws. For this, the organization can be fined from 30,000 to 50,000 rubles. or suspend its activities for up to 90 days (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

But there will be no punishment for the employee. And the days of your vacation will not be lost. The employee is entitled to full leave for these days.

Is it possible to replace vacation with money?

Vacation cannot be replaced by compensation. Even the vacation that the employee has not taken for more than two years. The employee can only take these days off on vacation. At the same time, vacation pay is paid for vacation, which can be calculated on our calculator .

Some employees are entitled to additional vacation days in addition to these 28 days. This:

• Workers engaged in work with harmful and (or) dangerous working conditions (Article 117 of the Labor Code of the Russian Federation)
• Employees with a special nature of work (Article 118 of the Labor Code of the Russian Federation)
• Workers with irregular working hours (Article 119 of the Labor Code of the Russian Federation)
• Workers employed in the Far North and equivalent areas (Article 321 of the Labor Code of the Russian Federation)

These additional days can be replaced with compensation. Compensation is calculated in the same way as regular vacation pay.

Vacation is also replaced with money if the employee quits. This case has been considered in a special article on our website .

Question about unused vacations occurs sooner or later in everyone who works long enough for one employer. Some people have a question about unused vacations due to dismissal. The issue became especially acute in 2010, when Russia ratified the convention of the International Labor Organization (ILO). In this article we will talk about the following issues:

Answers to frequently asked questions

Let's start with the questions that are most often asked.

Does unused vacation expire?

No, unused vacation can be used during the next working year. If during this period the vacation was not used, then you can get money for the vacation, but only by quitting.

Is it possible to take unused vacation over several years?

No, unused vacation can only be taken from the previous working year. You cannot add up unused vacation over several years.

Is it possible to replace unused vacation with money?

It is possible to replace vacation with money only in part exceeding 28 calendar days, that is, for the majority of those who have the right to a vacation of 28 calendar days, it will not be possible to replace vacation.

Is unused vacation paid upon dismissal?

Yes, upon dismissal, compensation for all unused vacation days is paid along with the rest of the money on the day of dismissal.

Does unused vacation for more than three years expire?

No, unused vacation never expires. Another thing is that an employee can receive compensation for unused vacation only upon dismissal.

Does unused vacation expire or not 2015?

In 2015, unused vacation does not expire, but is transferred to the next working year or compensation is paid upon dismissal

Unused vacation item

The main article that describes the employee’s right to unused leave upon dismissal is Article 127 of the Labor Code of the Russian Federation.

What is unused vacation?

All employees are entitled to vacation according to the Labor Code. The basic duration of leave is 28 calendar days, and some categories of employees are granted extended or additional leave. One way or another, some employees are accumulating vacation time. A situation arises when an employee has a lot of vacations, but nowhere to put them. Thus, unused vacations- these are vacations that the employee did not use on time at one time, that is, he was not on the required vacation.

Postponement of vacation is possible, but only for a year. That is, unused vacation can only be used during the next working year; if more time has passed, then the vacation cannot be used.

Employers are prohibited from not allowing employees to go on vacation for two consecutive years.

In practice, many employees do not want to go on vacation for a long enough time (for example, two, three or five years), or take the entire vacation, but only part of it.

Where does unused vacation go?

Nothing happens anywhere with this vacation, but you can’t use it either. This raises a reasonable question: Is it possible to replace vacation with money?

Replacement of unused vacation with monetary compensation

Until recently, it was possible not to go on vacation, but to get money for it. Currently, only those who have a vacation duration of more than 28 days per year can receive compensation for vacation - these are, for example, extended or additional vacations. If an employee is only entitled to vacation of 28 calendar days, then it is impossible to replace part or all of this vacation with money!

A reasonable question arises: an employee has not been on vacation for several years, does his unused vacation expire?

Unused vacation expires

It turns out that for most employees, whose vacation is 28 calendar days per year, it cannot be replaced with money, but can only be used for its intended purpose in the current or next working year. Where do the leftovers go? unused vacations?

Nowhere, they just accumulate and the only case when compensation is paid for all unused vacations is dismissal.

Answer to the question: Does unused vacation expire?

No, unused vacation does not expire , but compensation for all unused vacations can only be received if you quit.

conclusions

Unused vacation is transferred to the next year only once, that is, vacation can be used in the current or next working year.

Compensation for unused vacation is not provided for employees with 28 calendar days of vacation.

Unused vacation does not expire, but is paid only on the day of dismissal.

Hello, help me deal with unused vacation.

Does it expire after 12 months? Is an employer required to pay compensation for the entire vacation upon dismissal of an employee, even if the vacation has accumulated over several years?

The information I found is contradictory: on the one hand there is Art. 124 of the Labor Code of the Russian Federation about the “shelf life” of vacation is 12 months, on the other hand - letter of Rostrud dated June 8, 2007 No. 1921-6 stating that vacation never expires.

Can I, for example, use vacation accrued over the last five years during the year? Does the employer face a fine if the employee himself did not want to go on vacation for several years?

Ivan, get ready, there will be a lot of references to the labor code.

Michelle Korzhova

financial consultant at Tinkoff Bank

Main holiday

According to the Labor Code of the Russian Federation, the annual basic paid leave of an employee is at least 28 calendar days. The employer is obliged to provide it. The period may be longer if provided for by law or employment contract.

The employer is obliged to provide the employee with vacation in accordance with the vacation schedule. A vacation schedule is a document that reflects when employees of all departments of the organization will go on vacation.

By law, vacations not taken from one employer are transferred to the next year.

The Labor Code of the Russian Federation directly prohibits the failure to provide vacation for more than two years in a row. An employer may be held accountable for violating the Labor Code of the Russian Federation if this is discovered during an inspection by the State Labor Inspectorate or the Prosecutor's Office.

That is, on the one hand, vacation not taken is transferred to the next year. On the other hand, if an employee does not go on vacation for more than two years, the employer may be held liable, even if the employee himself does not want to go on vacation.

If you have accumulated vacation time for several years at one place of work, then theoretically you can take it off for one year, but only with the agreement of your manager. You cannot be prohibited from taking official vacation, but it is unlikely that any manager will like it if his employee goes on vacation for several months. In such situations, some employers may offer the employee to resign and then rehire him.

The Labor Code of the Russian Federation also has the so-called additional leave. It is provided to specialists in certain professions who work in particularly hazardous conditions, or in certain territories, or with irregular work schedules.

For example, Sergey usually works five days a week from 10 am to 7 pm, but sometimes he needs to work longer or come to work earlier. If the employment contract contains a note about irregular working hours, then Sergei is entitled to additional leave. Minimum additional 3 days of vacation for each year worked.

You can take extra vacation, or you can save it. You can also receive compensation for it not only upon dismissal, but also while working in the company.

To ensure that no controversial situations arise, I recommend going on vacation in accordance with the vacation schedule.

If you have a question about personal finance, credit history or family budget, write to: [email protected]. We will answer the most interesting questions in the magazine.

The question: whether vacation not taken in 2017 (or as it is often colloquially called “vacation not taken”) will expire or not is of concern not only to personnel officers, but also to the employees themselves. What to do with the remaining days - can they be transferred to the future or is it necessary to pay monetary compensation? What documents are drawn up? You will find answers to these questions below.

Unused vacation: does it expire or not?

The labor legislation of the Russian Federation regulates the right to annual paid leave for all employees, without exception, in accordance with the provisions of Art. 107, 114, 122 TK. Such rest, used at the discretion of the individual, with preservation of average earnings and with exemption from direct work duties, must be provided by employers every year (Article 114). At the same time, in accordance with Art. 124 it is prohibited to refuse to provide annual leave for two consecutive years, although, as reality shows, such a practice is not uncommon in enterprises.

In this regard, does vacation from previous years expire in 2017 if it has not been used in full? For example, a specialist has 10 days left from 2016. Is it possible to add these unused vacation days to vacation in 2017? In this situation, 10 days are initially provided. past, and then take the current vacation off. If a person resigns, then according to Art. 127 of the Labor Code, he has the right to choose to receive financial compensation for unused vacation for previous years or to take the required days off with subsequent dismissal. In the second case, a written statement will be required from the employee.

How to calculate days of unused vacation upon dismissal

Thus, we have decided that unused vacation days do not disappear and are not burned. But how is compensation calculated for days off if a specialist resigns? To calculate the amount, you will need to determine the number of allotted vacation days depending on the length of time the employee works.

Moreover, if a person has worked for 11 months at the time of dismissal, he is entitled to full compensation. In other cases, according to the generally accepted method, 2.33 days of vacation are required for each month worked. For example, a person leaves an organization after working there for 5 months. and 16 days. According to the rounding rules, the length of service with this employer is 6 months, that is, the employee is entitled to 13.98 days. vacation (6 months x 2.33).

Calculation of the number of days of unused vacation upon dismissal - example

There is another way to calculate the number of days of vacation not taken off - in proportion to the time worked. The following formula is applied:

• Number of days = 28 days. / 12 months x Number of months worked.

If you make a calculation based on this technique, according to the conditions of the example, you get:

• Number of days = 28 / 12 x 6 months. = 14 days

As you can see, the second method is slightly more beneficial for employees. In addition, if, in addition to the main employee, he also has the right to additional leave according to the norms of Chapter 19 of the Labor Code, these days are also included in the calculations when determining the total number of vacation days for calculating monetary compensation.

Application for unused vacation - sample

Unused vacation can be provided to the employee according to or according to the vacation schedule with the corresponding days added to the total period according to gr. 5. If an application is written, the rest period must be agreed upon with the employer’s administration. The form of drawing up the document is arbitrary. It is necessary to indicate the full name/position of the employee and manager, days of upcoming rest, and the date of compilation.

Application for vacation leave - sample

to CEO

LLC "Iskra" Doronin V.P.

from the installer Gvozdenko Yu.I.

Statement

I ask you to grant me another paid leave from June 1, 2017 for 10 (ten) calendar days.

__________________ / Gvozdenko Yu.I./

Note! Replacement with monetary compensation at the request of the employee is allowed only for days exceeding the standard duration of annual leave - 28 calendar days (Article 126 of the Labor Code).