Vacation during downsizing. Are you required to give leave during a reduction?

Good afternoon. I have a question about layoffs, layoffs are coming and there are rumors that with the delivery of a notice of reduction of my position (two months in advance), I will be offered to go on vacation (finish my 18k.d.). With that in mind, I have a question:

1) Do I understand correctly that I am losing money. because I can get wages for a full two months from the date of delivery of the notification, having worked them out! And two months later severance pay+ compensation for unused.

Is it possible to leave with a reduction?

People often ask if you can take a vacation when there is a downsizing? They also wonder if there are restrictions on unused vacations. In order to find out the answers, you should look into legal documents, for example, the Legislation of the Russian Federation.

The legislation states that there are no restrictions that could prevent the use of leave during working hours. In addition, there is a law that prescribes to issue compensation for unused.

Does an employer have the right to refuse to grant annual leave to an employee after a warning about the upcoming dismissal due to a reduction in headcount or staff, if the employee asks for leave in advance?

Does an employer have the right to refuse to provide annual leave employee after a warning about the upcoming dismissal to reduce the number or staff, if the employee asks for an advance payment?

Does the employer have the right to refuse to grant annual leave to the employee in the notification period, if the employee asks for leave in advance, there is no collective agreement, this norm is not spelled out in the local acts of the organization.

Use of leave when reducing the number or staff of employees

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Is it possible to provide employees with a full vacation before layoffs, if during the period of warning of the upcoming dismissal according to the vacation schedule, the employee is entitled to another vacation? Is there a deduction for unworked vacation days in this case?

Is it possible to provide employees with full leave before layoffs, if during the period of warning of the upcoming dismissal according to the vacation schedule, the employee is entitled to another vacation? Is there any withholding for non-worked days?

Answer: If an employee who was warned about the upcoming dismissal due to a reduction in staff or the number of employees, during the warning period, is entitled to another paid vacation according to the schedule or by law, then the employer is obliged to provide it, and the employee is to be dismissed after the end of the vacation.

Is it possible to dismiss an employee (male) due to staff reduction (works during parental leave)

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Can an employee who is on maternity leave be fired due to redundancy?

If during the period the employee was on maternity leave, parental leave has changed staffing and her position is reduced, will it be lawful to dismiss the employee on the reduction? If the dismissal is unlawful, then how can the situation be brought into line with the law?

The dismissal of a redundant employee during pregnancy and before the child reaches the age of 3 years is illegal.

Vacation during downsizing

According to the second part of Art. 180 of the Labor Code of the Russian Federation about the upcoming dismissal due to a reduction in the number or staff of the organization's employees, employees are warned by the employer personally and against signature at least 2 months before the dismissal.

Representatives of the Ministry of Health and Social Development of Russia N.Z. Kovyazin and Rostrud I.I. Shklovets believe that an employee may be warned about dismissal due to a reduction in the number or staff during a period or temporary disability (Reduction.

Many people ask the question: is it possible to leave with a reduction in staff? Also, people often wonder if there are any restrictions on vacations that have not been used. To answer these questions, you need to turn to the law. Russian Federation.

What does the legislation say?

After notification of the reduction, the employee has the right to unused vacation days

There are no restrictions that prevent the use of your leave for all previous years of work. There is also a law that provides for compensation for all unused vacation days. But these rules apply only to the situation when there is a dismissal of employees due to a reduction in their number.

The termination of the employment contract on the basis of a reduction must be notified in advance, namely 2 months in advance. This is stated in article 180 Labor Code:

1. The possibility of extending the term for warning employees about their dismissal, as well as the suspension of this period of time, is not provided for by law.
2. The dismissal of an employee initiated by the organization during the period when he is unable to work or is on vacation is unacceptable.
3. This rule does not apply to cases when the employer ceases to operate or the entire organization is liquidated.

Is it possible to take a vacation with a reduction? After an employee has received notice that he is about to be fired due to a reduction in position, he has the right to use his vacation. This takes into account not only the main, but also additional leave. Layoff notice time is not added to vacation days. If the warning period has already expired and the employee is still on vacation, then the employment contract can only be terminated after the end of the vacation period. That is, an employee can take all unused vacations and at the same time be registered with the organization.

Many are also interested in the question: is it possible to get another vacation during the notice period for the reduction? Yes it is possible. In this case, the employer does not have the right to refuse leave until the termination of the contract.

Financial compensation

Vacation can be compensated financially at the request of the employee. To do this, you will need to write a written application, which will inform you of the desire to replace vacation time with material compensation. According to this document, the employer is obliged to pay a certain amount of money on the day when labor contract considered terminated. It is important to know that all vacations that were not used at the time of dismissal are paid.

The provision that monetary compensation is not paid if leave is granted in case of a reduction in position in the last three years has already been repealed. Therefore, the employee can claim compensation for all rest days, regardless of their number. You can calculate the amount of compensation yourself. To do this, you need to know only the number of vacation days and the average wage.

In addition to the funds paid for unused vacations, the employer also provides compensation provided for each employee who has been made redundant. These payments are a temporary measure to support the employee in the period after the termination of the contract.

Maternity and study leave

Vacation can be compensated financially at the request of the employee himself

Study leave in case of reduction, just like maternity leave, is granted according to the same rules as regular leave. But in the case of pregnancy, the employer can give his employee the right to choose another position, to which she will be transferred. At the same time, the freed space is reduced. After the expiration of the vacation time, the employee may be dismissed.

Features of maternity leave

This state of affairs is justified by legislation, which provides the employer with the opportunity to change the staffing table at its discretion. Therefore, employment contracts can be terminated at discretion. individual who acts as an employer.

But this paragraph of the law does not apply to pregnant employees. Therefore, only a transfer to another position is possible. In addition, the employee can perform her functions during the parental leave. But work during this period is possible only at the request of the employee herself. The employer does not have the right to call her before the expiration of the rest period.

The operation of transferring an employee to another position is possible only with her written consent. However, she is not required to come to work during the holidays. If any disputes arise, it is the employer who is obliged to prove compliance with the dismissal procedure.

Study leave features

Study leave in case of reduction is given according to the same rules as all other holidays

The provision of study leave during the reduction period is carried out according to the same rules as all other holidays, but this procedure has a number of nuances.

Study leave may only be granted if:

1. An employee who combines professional activity and education receives a certain profession in a higher educational institution accredited by state bodies.
2. The study proceeds successfully, without debts during the entire semester.
3. The student has access to the next session.
4. Study leave can be granted during the reduction only if the date indicated in the call certificate is earlier than the date of dismissal. Otherwise, the employee is dismissed without being granted leave.
5. If the organization ceased to exist during the study leave of an employee, he must be paid appropriate compensation.

These provisions establish articles 173-176 of the Labor Code. They indicate that an employee can go on study leave if he receives a certain level of education for the first time. Otherwise, the guarantee does not apply.

In addition, if a student studies in two different educational institutions, then all points of the law can apply only to one of them. The employee is given a choice between these higher educational institutions.

But it should be noted that the presence of such an employee to receive notification of the upcoming reduction is not required. How to warn an employee about layoffs if he is on vacation? The employer must send a notice by mail.

At the same time, the boss must insure himself and send a letter with delivery against signature in order to have data on receipt. Only in this case, the employee will be considered notified of the upcoming dismissal.

Can an employee who is on vacation be made redundant?

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According to Article 81 of the Labor Code of the Russian Federation, the dismissal of an employee at the initiative of the employer (including redundancy) during his temporary disability and during his vacation is not allowed.

Therefore, it is IMPOSSIBLE to dismiss on the 23rd.

Reduction of an employee during vacation

If the employee does not receive a notification, then he will have to be notified of the upcoming dismissal after the end of the vacation and going to work.

But these rules apply only to the situation when there is a dismissal of employees due to a reduction in their number. The termination of the employment contract on the basis of a reduction must be notified in advance, namely 2 months in advance. This is stated in Article 180 of the Labor Code: The law does not provide for the possibility of extending the term for warning employees about their dismissal, as well as suspending this period of time.

Dismissing an employee who is on vacation

However, the employee must notify the employer in writing of the decision.

The notice period is set by law.

It is two weeks before the event. This rule is the same for the situation when an employee is dismissed during the vacation period or an employee is dismissed during the performance of his duties.

There is often confusion around the two-week time frame.

Reduction of an employee who is on vacation

How many times can the reduction of a worker be delayed, and what will happen if such an order for familiarization is not signed? I work in a commercial bank, I am a participant in the liquidation of the Chernobyl accident of the 2nd category.

Some time ago I received a warning about dismissal under Article 40, Clause 1 of the Labor Code.

As a “Chernobyl worker”, I have the right to priority retention at work in case of redundancy. Should the administration of the bank follow any obligatory formal procedure in connection with my reduction? I leave at my own will.

The employee must be notified of such termination in writing at least three calendar days before the dismissal, except in cases where the contract was concluded for the time of the performance of the duties of the absent employee (it terminates when this employee returns to work (part three of Art.

79 of the Labor Code of the Russian Federation)). Note that in practice one can find examples of a different interpretation by the courts of the provisions of the fourth part of Art.

For example, if a young mother this moment time does not work due to caring for a child, then the administration of the enterprise, after sending a notice of reduction twice (the first time - two years, the second - three months) and wait until the child is three years old, may dismiss her.

And such a reduction would be legal. Other courts insist that the notice of impending layoffs refers to a redundancy procedure that has already begun, but such a notice was not applied during the holiday period to women who have children under the age of three or members of the enterprise who are on parental leave. child.

In what cases can an employee be fired on vacation?

How to avoid mistakes when laying off staff?

He can "rest" the days assigned to him, and then receive an order for dismissal and payment on his hands. True, this applies only to those situations where the residual period is more than two weeks.

He should be fired and then, if necessary, sue. For example, this can happen if, when leaving the corresponding position, an inventory was not made, and then a shortage was discovered.

Hello! It is necessary to inform the employee about the reduction, he is currently on vacation. Can I notify by Russian postal letter if he refuses to come in order to receive notification. If an employee mail order. does not receive a letter, then the warning procedure will take place only after the vacation?

and so the Republic of Belarus, before the dismissal for reduction, which has become known to everyone, selects all holidays, etc.

With exception staff units from the schedule may be reduced after the holidays. In this case, the opportunity to receive appropriate payments for vacation is important. According to the legislation, compensation must be paid instead of any vacation not taken off. It is also worth considering that during the reduction, any employee has the right to the next vacation, which is set according to the schedule.

Reduction

When deciding to reduce staff, a number of jobs are excluded from the schedule. All employees who are in these positions must receive a notice two months before the date of actual dismissal.

Important! This period of two months is full-time working time, during which it is possible to receive sick leave or vacation. This can happen even on the last working day, which is indicated in the order and notification.

If on the date of reduction the person is on vacation, then his workplace cannot be reduced under labor law. This rule applies when various options holidays, including:

• caring for a child or a close relative;
• annual and additional, which are mandatory for submission;
• at your own expense or without content.

The latter option is made without pay, but after the employee appears at the workplace, he will need to be calculated for all the due payments.

The order of reduction itself is standard:

• after the decision to reduce a certain number of staff units, an order is issued that takes into account the possibility of reducing all posts. It should be borne in mind that maternity leave and all vacationers cannot be reduced before the date of entry to the workplace. This is established by law;

• on the basis of the order, all those who are reduced are delivered a notification, which they must sign after familiarization. The date in the notice is the same as the date of reduction by order;

• there is a provision of vacancies;
• in specified period all laid-offs are fired;
• if the person who is going under the dismissal is still on vacation, then it will be reduced on the day that follows the last day of the vacation. This day will be the first business day.

Important! It is required not to confuse the last working day and the last day of vacation. According to the law, vacation reduction is not possible. This rule also applies to the last day of vacation. It is for this reason that the reduction takes place on the first working day after going to work.

Grant of vacation

Understanding how leave is granted under the redundancy procedure requires knowledge of the basic processes and activities.

After notification, the employee must work for another two months, and then look for work. This is with the option that he will not be given a new job.

Important! If there is a vacancy in the new staffing table, but it was not offered to the employee on the redundancy, then he has the right to sue and appeal the process itself. It is also worth considering that all the funds that they received as compensation will not be returned to the employer.

Within two months up to and including the last working day, an employee can go on vacation, including childcare or training. If the employee was there at the time of the issuance of the order to reduce, then it is prohibited to reduce it. In fact, you will have to wait for him to come out of vacation and then carry out a full-fledged procedure.

The application for leave can be accepted or rejected by the employer, but in some cases the manager is required to sign it. In particular, this applies to such points:

• pregnancy;
• baby care;
• annual, obligatory according to the schedule.

The date of such start of leave may coincide with the date of reduction. After a full vacation, a dismissal will be made.

Days of standard leave not taken off must be paid in the form of compensation, which is calculated individually for each employee. It depends on the number of days, as well as the average daily earnings.

Important! At seasonal work or fixed-term contract less than 2 months, the leave rule, especially for women (pregnancy, child care) also applies. With this option, the notice is set not for two months, but for three days (less than two months of the contract period) or a week (season).

Main nuances

Among the moments regarding vacation, there are many nuances that need to be taken into account by both the employee and the employer.

Peculiarities:

• even if it is impossible to dismiss on vacation, a notification is delivered to the employee. The method may be different, including by mail or, in case of emergency, by telephone with the presence of witnesses;
• all documents must comply with all legal regulations;
• if the employee is on vacation during the reduction and he is offered a vacancy, then his consent must be strictly in writing;
• An employer cannot fire an employee on leave at will. But if necessary, you can agree with the employee on an early option or on the agreement of the parties. At the same time, an early version with all non-reducible categories is also impossible, as with a full-fledged version.

If the employee refuses to sign the document and does not respond to the notification, then an act on this fact must be drawn up. The nuance is the presence of at least two witnesses. If there is an act, then the notice is valid.

Among the frequent cases in judicial practice dismissal with leave. Mistakes are made due to ignorance of the regulations. For example, if an employee has a study leave according to the plan, which occurs on the day of the reduction or earlier, then he cannot be fired. But if the curriculum begins after the date specified in the order, then the dismissal follows the standard plan.

Important! Each vacation taken before the reduction is included in the calculation, that is, if there are necessary payments, then the funds must be issued to the employee on the day of calculation (the first day after the vacation).

Also a frequent case is the appearance at work of a woman on maternity leave or a woman who is on parental leave. By article 261 of the Labor Code of the Russian Federation it will still not work to reduce a woman before the child reaches the age of three. It turns out that you have to wait for the specified period.

With staff reductions, employees can also go on vacation, just like during normal working hours. Any persons on leave cannot be made redundant. The reduction itself and the calculation are made on the day that follows the last day of vacation. When carrying out the procedure, it is necessary to correctly draw up all the documentation, since failure to comply with the regulations for filling out documents will lead to penalties against the perpetrators.

This is stated in Article 180 of the Labor Code:

1. The possibility of extending the term for warning employees about their dismissal, as well as the suspension of this period of time, is not provided for by law.
2. The dismissal of an employee initiated by the organization during the period when he is unable to work or is on vacation is unacceptable.
3. This rule does not apply to cases when the employer ceases to operate or the entire organization is liquidated.

Is it possible to take a vacation with a reduction? After an employee has received notice that he is about to be fired due to a reduction in position, he has the right to use his vacation. This takes into account not only the main, but also additional leave. Layoff notice time is not added to vacation days.

Granting leave during the reduction period

Back to Reduction of holidaysMany people ask the question: is it possible to take a vacation with a reduction in staff? Also, people often wonder if there are any restrictions on vacations that have not been used. To answer these questions, it is necessary to refer to the legislation of the Russian Federation. After notification of the reduction, the employee has the right to unused vacation days.

There are no restrictions that prevent the use of your leave for all previous years of work. There is also a law that provides for compensation for all unused vacation days. The termination of the employment contract on the basis of a reduction must be notified in advance, namely 2 months in advance.
This is stated in Article 180 of the Labor Code: 1.

Retrenchment leave

It is important to know that all vacations that were not used at the time of dismissal are paid. The provision that monetary compensation is not paid if leave is granted in case of a reduction in position in the last three years has already been repealed. Therefore, the employee can claim compensation for all rest days, regardless of their number.

You can calculate the amount of compensation yourself. To do this, you need to know only the number of vacation days and the average wage. In addition to the funds paid for unused vacations, the employer also provides compensation provided for each employee who has been made redundant.
These payments are a temporary measure to support the employee in the period after the termination of the contract.

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Attention

You can file a claim for the recovery of debt from the employer for compensation for unused vacation within 3 months from the date of dismissal. Article 392 of the Labor Code of the Russian Federation. Dear Svetlana Viktorovna! I was accepted to the place of an employee on maternity leave, with a reduction in staff, they will reduce me or simply fire me Question: Was accepted in the place of an employee on maternity leave, with a reduction in staff, will they reduce me or simply dismiss me, terminating the contract? Lawyer Answer: Hello! If you are laid off at the enterprise, you can also be reduced and paid a severance pay. Looking at what kind of contract you have with the employer??? Articles 256, 261 of the Labor Code of the Russian Federation. Therefore, you are not threatened with reduction.

Maternity leave and study leave Leave can be compensated materially at the request of the employee. Study leave in case of reduction, just like maternity leave, is granted according to the same rules as regular leave. But in the case of pregnancy, the employer can give his employee the right to choose another position, to which she will be transferred. At the same time, the freed space is reduced. After the expiration of the vacation time, the employee may be dismissed.

Features of maternity leave This state of affairs is justified by legislation, which provides the employer with the opportunity to change the staffing table at its discretion. Therefore, employment contracts can be terminated at the discretion of the individual who acts as an employer. But this paragraph of the law does not apply to pregnant employees.

Advokatregion

If the warning period has already expired and the employee is still on vacation, then the employment contract can only be terminated after the end of the vacation period. That is, an employee can take all unused vacations and at the same time be registered with the organization. Many are also interested in the question: is it possible to get another vacation during the notice period for the reduction? Yes it is possible.
In this case, the employer does not have the right to refuse leave until the termination of the contract. Vacation can be compensated financially at the request of the employee. To do this, you will need to write a written application, which will inform you of the desire to replace vacation time with material compensation.

According to this document, the employer is obliged to pay a certain amount of money on the day when the employment contract is considered terminated.

Use of leave when reducing the number or staff of employees

Info

If the contract specifies a fixed amount, for example, 30 thousand rubles, then the employee will receive them. This also includes wages, which are calculated separately from the severance pay, but an employee can receive it for no more than 2 months. This applies only to those who leave not of their own free will.

Upon termination of the contract, the employee also has the right to count on it. Example: F. P. Alekseev was warned of his dismissal several months in advance and dismissed ahead of schedule. The rest of the days that he did not work before his dismissal is 12, and the days worked for the last month are 22.

If we take into account that in a year (226 days) he earned 240 thousand rubles, then in one day he received 1,088 rubles. So, to calculate the severance pay, you need to multiply the wages per day by the number of days worked for the last month - 1, 088 × 22. As a result, the severance pay for F.P. Alekseev will be 23,936 rubles.

Vacation before downsizing

It is impossible to dismiss an employee before he returns from study leave. Article 81 of the Labor Code of the Russian Federation directly states that such dismissal is possible only in the event of liquidation of the enterprise or termination of entrepreneurial activity. Reduction and maternity leave Every woman who is on maternity leave must understand that it is impossible to fire her. Although many unscrupulous employers still try to lay off a young mother, without fear that it is illegal. The consequences for the organization can be:

• fine;
• payment to a woman of average earnings;
• her reinstatement;
• compensation for moral damage.

The first thing such a woman should do is to turn to lawyers. You can win such a case 100%, but you should not leave this employer unpunished.
Compensation has been paid for unused vacation upon dismissal Question: Dismissed due to redundancy on November 7, 2014. Compensation was paid for unused leave upon dismissal (in proportion to the hours worked). It seems to me that the calculation is not correct. Are the Rules on regular and additional holidays (paragraph 28) in force, according to which, for a period of more than 5 and a half months, with a reduction in staff, compensation should be for full year, i.e. 28 days. Recruitment - April 2, i.e. a period of more than 7 months. And in what period I have the right to apply to the organization for recalculation and making additional payments. Lawyer's answer: you have the right to apply within a year from the date of dismissal. The rules are in force, clause 28 applies at the current time.

Are you required to give leave during a reduction?

From this number, the vacation days already used by the employee are subtracted, and, for example, 13 days remain (70 - 57). Then the earnings per day are calculated and multiplied by 13 days. If the average amount per day is 1 thousand rubles, then the compensation will be 13 thousand.

rubles. Are retentions possible? No funds can be withheld in favor of the enterprise upon dismissal of an employee. All settlement with him must be made no later than the last business day. Lump-sum payments A lump-sum payment in case of reduction is considered to be severance pay, wages and various compensations. Most often, the amount of severance pay is the average monthly salary of an employee (Article 178 of the Labor Code of the Russian Federation). In this case, the amount can be much more if this item is spelled out in the collective agreement. If an employee received a salary of approximately 20 thousand rubles.