If for some reason it is not possible to take a vacation, it should be rescheduled for another period. But it must be used no later than 12 months after the end of the period for which it is issued. At the same time, in mandatory for such a transfer there must be compelling reasons that are enshrined in the Labor Code. All reasons for postponing vacation can be divided into those initiated by the employee and those initiated by the employer. For ease of consideration, they are listed in the table below. Reasons initiated by the employee Reasons initiated by the employer Personal extenuating circumstances. Management decides how respectful they are.

When does the main leave expire?

However, for several categories of citizens similar right is not provided, they must rest in full. These include:

• employees who are under eighteen years of age;
• pregnant women;
• employees engaged in hazardous work.

Question No. 2. The employee was hired on a probationary period of three months.
However, after two years he quit. Is he entitled to compensation for unused vacation? The law does not establish any specifics for granting leave to employees who are on probationary period. Therefore, in the event of dismissal of such an employee (regardless of at will or due to non-compliance with the company's requirements) he is entitled to pay appropriate compensation. Thus, the procedure for providing unused vacation days is clearly regulated in Russian legislation.

Rules for registering unused vacations

It is unlikely that anyone will conflict with management. In this case, you could lose your job. Under such circumstances, solutions are found that would satisfy each of the parties. The law stipulates that if an employee does not rest, he is entitled to monetary compensation.
It may be required in some cases. There are certain conditions that indicate the protection of workers' rights. Laws are adopted taking into account that managers of large and small enterprises cannot mislead people and simply exploit them. There are bodies whose responsibility is to monitor the process of compliance with the rule of law in organizations.

The employer must monitor the health and rest of subordinates. If employees do not take rest for any reason, and there is a vacation debt, they are awarded compensation.

Non-vacation leave - subtleties of legislation on this matter

Attention

The employer “kicks you out” on vacation. The simplest and most acceptable option for all parties is if the employee still takes his vacation, at once or in parts (Article 125 of the Labor Code of the Russian Federation). Accordingly, he will be able to rest and receive vacation pay for this period. The situation is worse when an employee is asked to write several applications for short vacations that fall only on weekends - traditionally Saturday and Sunday.

The employer, when recommending this option, usually reminds that the employee will receive more money. After all, for each such day off the employee will be paid vacation pay. At the same time, in such a situation, the employee’s vacation days actually expire.

Because he wouldn’t work on weekends anyway, and he could take a vacation later, and at the same time receive not only the same vacation pay, but also have a full rest.

Unused vacation

The Labor Code establishes that the employer does not have the right to refuse to provide an employee with leave. Such a violation may result in a fine of 50 thousand rubles. Previously, the employee had the right not to go on vacation, but to receive compensation in cash equivalent. Since 2011, Russia has joined the International Convention, which regulates the provision of vacations. Now it is impossible to receive compensation instead of the main days. In addition, you cannot postpone your vacation for more than two years.

It is not beneficial for company management to allow employees to accumulate unused vacation days.

Does unused vacation from previous years expire?

Important

Records are made about the work performed (employment), transfer to another job, dismissal, indicating the grounds for termination employment contract with reference to the article of the Labor Code of the Russian Federation. Successes and awards are included in the work book, but there is no data on violations and penalties, except in the case of dismissal under an article. If the employee has a desire, then entries are made about part-time work.

Can an employee have several work books? According to Article 66 of the Labor Code of the Russian Federation, if the employee carries out his activities for 5 days and the work is the main one, then the employer is obliged to create a work book for the employee. Thus, an employee may have several work books at once. In practice, this situation does not happen, and workers, on the contrary, start a second job in order to go to work at another job without any restrictions.

Can unused vacation expire in 2018?

Naturally, those workers who, for some reason, rarely go on vacation, total unused vacation days may be quite large. Employers often do not like this state of affairs. And there are 2 reasons for this. Firstly, if the labor inspectorate comes to the organization, the inspectors will definitely have questions about why workers cannot fully exercise their right to rest.

And secondly, the more vacations an employee has accumulated, the greater the amount of compensation he will have to pay upon dismissal (Article 127 of the Labor Code of the Russian Federation). In this regard, employers often offer their employees different ways“getting rid of” unused vacations from previous years. Let's see what options are possible and what their pros and cons are.

Burning out vacation time

Do not interfere with staff rest, plan annual rest for employees by drawing up a schedule for the next year. An employer whose employees do not rest for more than two years in a row may be fined, the amount of the fine can reach 50 thousand rubles. In this case, the employee does not incur any losses, no punishments are provided for him, his unfilled vacation does not expire, and the right to compensation is retained for all days.

How to count the number of deposits vacation days, can be found in this article, where examples explain the procedure for determining the working year and the corresponding number of vacation days. Does unused vacation expire under the International Convention? Since the end of 2011, the Russian Federation has taken into account the provisions of the ILO convention, which, regarding paid vacations, states that the employee’s right to compensation for unused vacation days remains for 21 months.

Info

This question occurs often - if you haven’t taken a vacation for last year, does vacation expire? For example, if there are days left over from last year, they automatically transfer to the next year. Perhaps add 13 days to your next vacation. In case of dismissal, in accordance with Article No. 127 of the Labor Code, the employee has the right to:

• Receiving monetary compensation for unused vacation.
• Submitting an application for vacation with further dismissal (at one’s own request, if for other reasons it is not paid and vacation days are running out).

Unused vacation debts expire in 2018 Do vacations from previous years expire? The answer to the question is unequivocal - no, both the unused vacation period in 2016 and in 2018 does not expire.

If the employee has not taken the required vacation during the year

If the employee does not bring a work book (for example, if this work for the employee first), then the employer must issue a work book. All responsibility for registering a new work book lies with the employer. The personnel department, personnel department, accounting department or director do not have the right to demand a new empty work book from an employee if there is none.

This is due to the fact that the work book is a document of strict accountability, which means to an individual it may simply not be sold. For more information on how to get a job, read a separate article. You don’t have to bring or fill out a work book if you work part-time. Who should purchase a work book There is a first time for everything. Someone gets a job for the first time and then the future employee does not yet have a work book.

The right of citizens to rest is enshrined in the Constitution of the Russian Federation; it also applies to employees of enterprises, which is expressly stated in the Labor Code. Despite this, employees are not always able to take a well-deserved vacation. People refuse to rest of their own free will, trying to prove their indispensability in the workplace. Sometimes working without vacations is an expression of staff loyalty to a manager who is having difficulties, and sometimes the result of blackmail by the employer.

When agreeing to work without vacation, employees often do not know whether unused vacation from 2019 expires or whether they can use the accumulated free days later or receive monetary compensation in return.

The issue, taking into account unused vacation, became especially acute after 2010, when Russia signed an international convention on the organization of labor of citizens. According to international rules, the opportunity for unused rest days is retained by the employee only for 21 months.

If a person missed the compensation deadlines, then all vacation days that were not used will be lost forever.

You should familiarize yourself in advance with the legislation and practice of decision-making at the employer level and judicial disputes in 2019 in Russia in order to understand under what conditions you can take off unused vacation days or receive compensation for them.

What it is

The very concept of “unused vacation” arises from the basic right given to each employee, according to Chapter 19 of the Labor Code. An employee has the right to take leave if he has worked for the company for more than six months. The right can be granted earlier, by agreement with the employer, or in the presence of exceptional circumstances, which are enshrined in law.

According to the law, there are several types of vacations:

• , duration 28 calendar days;
• additional paid;
• additional without salary.

Any form of order must have a manager’s visa, after which it is registered in the accounting register.

There is no unified form of the log, so it is formed depending on the data, the entry of which will be convenient for the employer for planning and accounting for staff vacations.

When registering transfers of unused days, recalling an employee from next vacation etc., the journal must reflect the basis for allowing deviation from the planned schedule. In case of transfer of unrealized vacation, it is the employee’s statement.

How to transfer

Labor legislation insists on an annual rest period for workers, and the absence of rest periods for two consecutive years is expressly prohibited.

In this case, the transfer of vacation or part of it is legally permissible:

• at the initiative of an employee or due to production necessity;
• with mutual consent of the employer and employee;
• if the transfer deadline falls within the next 12 months beyond the deadline fixed in the schedule.

The employer may not release the employee from work during the planned period, but only with the latter’s consent. If the vacation is included in the approved schedule, the employee has the right to leave work, despite management’s request for a postponement. However, this right is used by employees quite rarely, since it expresses a lack of loyalty to the entire team.

Among the common reasons why managers initiate rescheduling of employee vacations:

• the indispensability of the employee when performing work that suddenly appears;
• introduction of new technologies or equipment at the enterprise that require the presence of an employee;
• the inability to cancel an employee’s business trip that falls during his vacation period;
• the need to entrust an employee with the affairs of an employee who is sick;
• a surprise inspection at the enterprise or department to which the employee belongs.

There is also a limitation when splitting vacations. According to it, one part of the vacation should not be less than 14 days. This rule ensures that employees have a minimum duration of leave and prevents employers from manipulating staff leave.

To transfer vacation to the next period at the initiative of an employee, only four grounds are allowed:

• if his vacation coincides with a period of temporary incapacity for work;
• if there are exceptional personal circumstances;
• if the employee was not warned about the need to go on vacation within the period established by law (two weeks before the start of the vacation);
• if vacation pay was not accrued on time.

Since the law does not specify personal reasons that allow employees to postpone basic vacations, the possibility of transferring on this basis is left to the discretion of the enterprise management. To add days off to the next vacation period, the employee must submit an application.

Employee statement

You do not need to comply with any special requirements when writing an application. Usually it is drawn up on a regular sheet.

• the addressee, who can be the immediate manager or the director of the enterprise, indicating his position, full name, name of the company;
• Full name and position of the applicant;
• a request to transfer vacation days, indicating their number;
• the reason for the transfer;
• employee signature.

If the transfer is carried out for personal reasons, and management does not object, a general wording is sufficient. When a transfer is required for reasons that violate the employee’s rights, it is better to describe the situation in detail and complete the application in duplicate. One of the applications that remains with the employee should receive an acceptance mark.

Compensation

To motivate employees to rest, the Labor Code limits the possibilities of monetary compensation for vacations.

According to the law, the required 28 days of vacation can only be used:

• it is impossible to receive money instead in the current working year;
• compensation is allowed only if the vacation was postponed and the number of days in total exceeded 28 (the days making up the difference are the only ones that the employee can be compensated for during the next year);
• after two years, they can only count on compensation if they are fired.

Upon dismissal

For those who decide to leave the company, there are several options for using vacation days that were not used during the period of work.

Opportunities and conditions:

• if at the time of dismissal there is unfulfilled vacation for the current year, you can use it to reduce the days intended for working under the law (depending on the number of days of vacation, you can reduce it to two working weeks);
• vacation for the current year can be obtained not in days, but in money;
• if the number of days of current vacation at the time of dismissal is more than 14, then the difference can only be compensated;
• past vacations that have not been used for more than two years will be compensated in cash.

The choice of option depends only on the employee. The employer does not have the right to impose a method of disposing of unused vacation days.

Therefore, if it is not intended to reduce the working time due to vacation, in order to compensate for unused days at the time of dismissal, the employee only needs to monitor the work of the accounting department. Severance pay should be calculated taking into account unrealized vacations without additional efforts on the part of the employee.

Going on maternity leave

Their rights are broader than those of other employees:

• during pregnancy it is almost impossible to fire a woman;
• a woman cannot be denied leave before and after maternity leave, regardless of her length of service at the enterprise;
• It is prohibited to recall pregnant women from vacation;
• Pregnant women are protected from employers’ encroachments on basic and maternity leave.

In addition, the employer does not have the right to refuse to provide the husband with leave at a convenient time if it coincides with the wife’s maternity leave.

When going on maternity leave, a woman can supplement it with those days that were not used during previous vacations:

• Due to these days, you can go on sick leave earlier for pregnancy and childbirth;
• you can postpone them to the end of the maternity leave, lengthening it;
• monetary compensation for refusal of the main and maternity leave not allowed.

Depending on which period of maternity leave the unused vacation is included in, vacation pay is calculated.

Thus, in 2019, an employer cannot prevent an employee from taking legal leave. The employee may be given the opportunity for additional rest or compensation. Upon dismissal, employers are required to pay in full for all vacation days to which the employee was entitled during the period of work, but was unable to take advantage of it.

You should not succumb to the manipulation of your employer if he abuses his power and forces you to waste your vacation days.

Common schemes:

• registration of short vacations that fall on holidays or weekends;
• adding a weekend to the current vacation, which “eats up” several previously unused vacation days;
• creating fictitious leave requests, under which the employee continues to work.

Thanks to such fraud, employees lose money and lose their required days off, and employers may be accused of violating labor laws.

You should know that issues related to receiving compensation for unused vacation that could not be resolved with the employer must be resolved through the labor inspectorate or in court. Cases of violation of workers' rights have a statute of limitations of three months.

The situation is such that over many years of service at work, it happens that the employee does not have time to take annual paid leave. The vacation period begins to accumulate and is lost over time. Many workers are concerned about the question: what to do if there is unfilled vacation and whether unused vacation from previous years expires.

According to Article 114 of the Labor Code of the Russian Federation, every employer must provide annual paid rest to its employee. It doesn’t matter whether an employee goes on maternity leave or is fired—vacation not taken off does not expire. According to Legislative framework Every employee has the right to accumulate vacation pay. How the process of restoring unpaid vacation takes place, what is provided upon dismissal: unrealized time off or compensation, more details in the article.

Can vacation not taken be lost?

According to the Leave Regulations, each employee has the right to receive 28 days off annually. If desired, vacations can be divided into periods. The main thing is that the first part should be at least 14 days. The second part can be processed up to one day. If an employee constantly contacts annual leave— the situation consists of the fact that you just need to know how the application is completed. If an employee has a day off in the previous year, the situation is more complicated.

First of all, the employer must notify his employees not only about the opportunity to go on annual vacation, but also give them the chance to choose a period of rest that suits them. The employee, in turn, must know what day his days off are scheduled for this year. If for some reason he was unable to take annual paid leave, the employer must act as a guarantor that the unused vacation will not disappear, but will accumulate in the vacation pay schedule.

A long day off without a holiday means that the worker was unable to arrange the holidays on time and they automatically transferred to the next year. A situation where an official wants to transfer vacation pay must have good reasons. You can reschedule your annual paid long day off:

• By the employee’s decision, if the terms of the Employment Contract do not prevent this possibility;
• At the employer's discretion.

The list of reasons why an employer may not let a ward go on vacation, according to Article 124 of the Labor Code of the Russian Federation, includes:

• Performing urgent work that only this specialist can do;
• Difficult financial condition of the company: bankruptcy, crisis;
• Insufficient number of people who could replace the departing person;
• During the rest period, the employee performs part of the duties assigned to him in conducting production.

You need to know that even in such situations, vacation pay for previous years cannot be burned out according to the Labor Code of the Russian Federation. Regardless of what position the ward has, whether he goes on maternity leave or decides to take vacation pay upon dismissal, according to the Law, it is possible to accumulate days off and use them in the next working year.

Does unused vacation from previous years expire?

If for some reason the employee does not use all or part of the vacation, the vacation automatically transfers to the next working year. Unused and unspent vacation does not expire. True, it doesn’t take long to accumulate vacation pay.

Vacations not taken from previous years can be postponed no later than one year. Other calendar periods will not be taken into account. Unused holidays can be issued in the current or next year. If this is not done, they will not be burned, but the employer will not be able to provide them to the worker. In such a situation, it is better to try to exchange the days off from work for previous years for compensation.

Upon dismissal, does unused vacation expire or not in 2018?

Unused vacation or part of the vacation upon dismissal does not expire, in accordance with the Labor Code of the Russian Federation. Upon dismissal, the employer, according to the vacation schedule, sums up the entire period not taken off. Therefore, the employee has the opportunity to take a well-deserved rest before leaving his position.

There are situations when a worker wants to receive monetary compensation instead of annual vacation pay. In this case, the employee should know that if the vacation time taken does not expire, this does not mean that its constant accumulation over the past years can be exchanged for monetary compensation. The law states: compensation is provided only to those categories of citizens who have vacations of more than 28 days and those who decide to terminate their employment contract. That is, people who have an extended vacation period and who want to quit can get money.

IN judicial practice It happens that an employer, through fraudulent means, can provide an employee with a reduced amount of vacation pay. If such illegal actions are proven, according to the Law, the manager will be held administratively liable.

Does vacation expire when you go on maternity leave?

According to the Laws and Labor Code of the Russian Federation, vacations not taken off before going on maternity leave do not expire. A pregnant woman can:

• Write an application to use the part of the vacation that is not taken off and go on maternity leave ahead of schedule;
• An employee can extend her maternity period using unused days off.

Even if the pregnant woman did not have time to fill out an application for vacation before her maternity leave. She can go out on the required weekend afterwards. The accumulative part of vacation pay does not expire even during a long stay on maternity leave.

Unused vacation - changes in the Labor Code of the Russian Federation from January 1, 2018

The rules for registering unused vacation will change from January 1, 2018. You need to know that if you write an application, you can receive unused vacation pay before dismissal. In this case, the employer must pay compensation for the entire period of non-vacation days off. Even if the term of the employment contract has expired, the period of annual vacation pay does not expire, but is provided regardless of whether it goes beyond the conditions or not.

You must notify your employer of your desire to take an annual day off no earlier than two weeks in advance. During this time, before the start of the rest period upon dismissal, the employee can change his decision and take back his letter of resignation from the workplace.

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 organization Labor 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, Khanty-Mansiysk Court 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).” The conference adopted an Appeal to the authorities state power(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 application to worsen the situation of workers and violate their constitutional right to rest, and also ask for assistance assistance in communicating their position to the highest court.

It must be said that quite recently, and after the entry into force of the Convention for 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 stipulated labor legislation and other acts containing labor law rules, 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, state mechanisms for establishing wages or any other similar instruments in accordance with the practice of the country and taking into account the 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 familiarizing yourself with English text Convention, the specified 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 does not have 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 of the 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 never 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 is in Supreme Court of the Russian Federation, which is authorized to provide explanations to the courts in order to ensure uniform application of legislation.

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

What is a vacation without leave?

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, missed vacations- these are vacations that the employee did not take on time on time.

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.

Where does the vacation not taken 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?

Vacations not taken off are forfeited

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 vacation not taken off expire?

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

conclusions

Vacation not taken off 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.

As already mentioned, Russia has ratified the International Labor Organization convention on issues related to paid holidays. Several reputable Russian newspapers, as usual, without understanding it, she incorrectly indicated in her article that all unused vacations will be forfeited. It was said that you can replace vacation with money for 2 weeks and a lot of other incorrect information.

It is stated that unused vacation may be lost. This is incorrect, first of all, it contradicts the Labor Code. No vacation can burn out, they will be paid in any case if the employee quits.

If the company did not send the employee on vacation, then this company problems, and not the employee, which is why upon dismissal all vacations must be paid.

In addition, the ILO convention does not contain such a concept as vacation burnout, just as the Labor Code does not contain it.

What really changed

And the fact that now one part of the vacation cannot be less than 14 days, the remaining days can be of any length, at least 1 day each. People go on vacation in accordance with the rules, which are mandatory for both the employee and the employer. But the employer must notify about the onset of vacation 2 weeks before it starts.