Is it possible to make it go on vacation. Can an employer get to go on vacation. What to do an employee who does not want to go on vacation

Each enterprise should send an employee on vacation, but there are such employees who do not want to go on vacation, in this situation you can go to meet, without breaking the law to issue work during the period of vacation, so, the employee does not want to go on vacation - the right decisions.

The first decision. Transfer Vacation

The schedule sets the order of paid annual holidays. Neither an employee nor the employer has the right to change the vacation time, which is set by the schedule. This issue is solved only by mutual agreement. There are cases when the enterprise must transfer the holiday date on the written statement of the employee to another date if:

1. The employee was warned about the date of vacation later than 2 weeks.
2. The employee paid the holidays not on time (less than 3 days before the start of the vacation period).

Despite the various circumstances, the TK forbids deprivation of a vacation worker for 2 years in a row (124 article). Accordingly, if your worker did not go on vacation for a long time, the option with the transfer of the selling period will not be suitable for you. At their own desire, the employer has the right to postpone the vacation of the employee with its approval, only if the lack of an employee can negatively affect the organization's work. However, transferred vacation should be provided for 12 months after the completion of the working year. This rule does not apply to workers who are not 18 years old, as well as employees who work on a dangerous and harmful production.

Second decision - or how to send an employee on vacation

The calendar days of the vacation period are included all days, including those that fall out for the weekend. In order of exception - festive non-working days that are not included on vacation, as well as not charge (120 article). In this case, if you want to send an employee on vacation on Saturday and Sunday, then these days must be paid. The TC does not prohibit the separation of the vacation period on the part, it is necessary only that one of them is at least 14 days, and the remainder of the employee is entitled to use at personal discretion, having approval of the head (125 article).

The third decision is to dismiss the employee, and subsequently take it anew to work

When dismissing the employee, monetary compensation for the days he did not use during the holiday (127 article). At the same time, these payments do not depend on the cause of the termination of the employment contract, besides, it does not matter whether the employee will be restored to work in the same organization. As a result, the employee can be fired on the first, paying him a certain compensation for all vacations that they remained not used, and after which, to hire again.

In this case, the TC does not oblige a manager to give an explanation, as in practice it happens that the employee who was recently dismissed, restored back, because he did not find a replacement or a specialist after a while returned at his own request.

In this article, we considered the case if worker does not want to go on vacation - The right solutions, if you hit this situation, take advantage of our recommendations to protect yourself from mistakes and act within the law.

Each employee has the right to an annual paid vacation, which is established by law. Alas, but that item is considered one of the most violated. Basically, employees complain that due to the economy of the employer in full-time positions they need to work for two and not take leave for a very long time.

If the employer refuses you on vacation, then its action can be challenged in court. But there are other conditions when the working woman does not want to go on vacation.

Can an employer officially rest in this situation? In this article we will talk about situations where the employer begins to force employees to go on vacation.

Legality and rules of vacations

To answer this question, it is necessary to find out what the annual vacation means annual leave is the rest time. Rest, which is entitled to receive an employee every year.

The duration of annual leave should be at least 28 days.

An order should also be written with which the employee must familiarize himself with and put his signature. 3 days before the occasion of vacation, vacation workers should be paid.

Also, for some reason, the vacation schedule was not compiled, then all of the above rules should be observed.

It happens that the employer can send an employee to a long unpaid vacation.

This happens when the organization turns out to be in a financial lack. To save money, employers offer workers unpaid leave.

Workers turn out to be very losing position. They do not receive fees for an emergency vacation and also they become unemployed. This is a violation of the rights of workers.

According to the law, if the employee is fired in connection with the reduction of the state, it should be warned in 2 months.During this period, he must accrue the entire salary, which he has accumulated and all compensation.

If an employee did not write statements that he asks to give him a vacation without salary preserving, then such a situation is calculated no longer leave, but a downtime by the fault of the employer, which, in accordance with the law of Art. 72.2 of the TC RF is paid in an amount of at least 2 \\ 3 salary.

What to do an employee who does not want to go on vacation?

There are cases when an employee does not want to get acquainted with the document on the upcoming vacation or with a decree on his provision, the representative of the employer is issued an act of disagreement. He must sign witnesses.

Such actions can be calculated as a violation of labor discipline, subsequently the penalty will be imposed on it.

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What document is the main one for the provision of vacation workers? What to take into account when drawing up vacation schedule? What are the peculiarity of vacation transfer and for how long can it be transferred? How long does the workers have the right not to use annual leave? What order uses neglected vacation? What to do to the employer if the employee refuses vacation? What documents do you draw up? Is it possible to attract the employee to disciplinary responsibility?

The right to relax at least 28 calendar days have all the permanent workers without exception. And if one of such a number of days is not even enough, then others do not go on vacation for years. But this is not only uncomfortable for the employer and, in particular, for personnelov, but also fraught with administrative liability. About how many years the employee may not go on vacation and what to do to the employer if some workers do not use their annual rest, talk in the article.

Base for vacation.

According to Art. 123 of the Labor Code of the Russian Federation, the order of granting paid leave is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the election body of the primary trade union organization no later than 2 weeks before the calendar year in the manner prescribed by Art. 372 TK RF.

At the same time, both for the employer and for the employee are obligatory.

Drawing up the schedule of vacations is quite responsible, especially if the organization has a large staff of workers. In such cases, first, as a rule, graphs are drawn up in structural divisions, and then a consolidated schedule is formed. The draft schedule of the division of the division can be entrusted to the managers of these units. Based on the graphs represented by them, the personnel service is a consolidated vacation schedule. Moreover, the responsibility of the heads of departments to compile a draft schedule better consolidate in the relevant order.

If such powers are not provided to managers, they can simply assemble their wishes from employees, on the basis of which and taking into account the requirements of labor legislation, the personnel worker will already be a single schedule of vacation.

Note:

When drawing up vacations schedule, you should consider the right of individual categories of workers on vacation at any time and work experience to provide such recreation. Do not forget to include in the chart and not used for the previous years of vacation.

In addition, when drawing up a chart, you will have to take into account the wishes of other workers, and the order of vacations in the previous year, and the intensity of the labor process during the year, and the specifics of the organization's activities. We'll have to try so that no interests of workers nor the interests of the employer. In order to avoid disputes, you can register the procedure for providing holidays in a local regulatory act and familiarize with him employees.

After drawing up, the schedule is signed by the head of the personnel service and is approved by the head of the organization or an authorized person (put a signature). If there is a trade union in the enterprise, then the schedule needs to agree with him. Despite the lack of responsibility, familiarize employees under the signature with the approved schedule, to do it.

We repeat that all these activities must be finished no later than 2 weeks before the new calendar year.

Recall that in accordance with Art. 693 List of typical management archival documents formed in the process of state bodies, local governments and organizations, indicating the timing of storage approved by order of the Ministry of Culture of the Russian Federation of August 25, 2010 No. 558, vacation schedule should be kept in the organization 1 year. Moreover, the calculation of the term is made from January 1 of the year following the year of the end of the termination. That is, vacation schedule for 2017, approved in December 2016, ends on December 31, 2017. Consequently, it is necessary to store it all 2017.

Valet transfer for the next year.

Annual paid leave can be transferred to the next working year. If such a transfer is carried out at the initiative of the employer according to Part 3 of Art. 124 Tk of the Russian Federation, two conditions must be respected:

the provision of vacation worker in the current working year may adversely affect the normal course of the organization;

the employee agreed to postpone leave for the next working year.

With a request to postpone leave for another period, including the next year, the worker himself can also appeal. If the employer does not mind, should be issued an order for such transfer and make changes to the vacation schedule.

The vacation transferred at the initiative of the employer should be used no later than 12 months after the end of the working year for which it is provided.

By virtue of Part 1 of Art. 125 of the Labor Code of the Russian Federation by agreement between the employee and the employer, annual paid leave can be divided into parts, one of which should be at least 14 calendar days. The question arises: how many such parts should be next worker, if the vacation is fully transferred for this year? That is, a worker should use two vacation for 14 days, and the remaining 28 days in parts or one vacation in the amount of 14 days, and the remaining 42 days in parts?

From the provisions of Art. 125 TK RF, regardless of how many days of vacation worker uses during the year, it can be concluded that one of the parts of the vacation should be at least 2 weeks continuously, and the rest of the vacation time for both years can be divided into parts by coordination between the employee and the employer.

Note:

Unused days of annual paid leave for previous periods The employer is obliged to take into account when compiling every new vacation schedule.

How old may not be used vacation?

In accordance with Art. 124 of the Labor Code of the Russian Federation prohibits failure to provide annual paid leave for 2 years in a row, as well as the failure to provide annual paid leave by employees under the age of 18 and persons engaged in work with harmful and (or) hazardous working conditions.

That is, if, as a general rule, employees may not use at least 2 years, then workers under the age of 18 and those engaged in works with harmful and (or) hazardous working conditions should use vacation every year.

Note:

Inspection of the annual paid leave for more than 2 years in a row, as well as failure to provide an unused part of the annual leave when it has been transferred within 12 months after the end of the working year for which it is provided is a violation of labor legislation and in the case of verification by the Labor Inspectorate, a fine may be imposed In accordance with Part 1 of Art. 5.27 Administrative Code.

If still it turned out that the worker did not use the vacation for 2 years and it accumulated 56 calendar days of vacation, should the employer need to provide him with 84 days or are they "burned"? Of course, nothing "burns", there is no such concept in the labor legislation. We will have to either provide an employee vacation in the amount of 84 days, or pay compensation for these days when dismissal.

According to Rostruda letter dated 08.06.2007 No. 1921-6 in case the employee has unused annual leave for previous working periods, then it remains the right to use all relying annual paid leave. Annual holidays for previous working periods can be provided either as part of the holiday schedule for the next calendar year, or by agreement between the employee and the employer.

For your information:

Earlier doubts about this issue arose in connection with the ratification of the Convention of the International Labor Organization No. 132 "On Paid Leaves" (hereinafter - the Convention) under Art. 9 Which is the continuous part of the annual paid leave (at least 2 business weeks) are provided and used no later than during the year, and the balance of annual paid leave is no longer less than 6 months after the end of the year for which the vacation is provided.

Based on the Convention, some courts denied those who dismissed compensation for unused vacation. True, the reason for the refusal was a pass to the employee of the limitation period. Thus, the Supreme Court of the Republic of Karelia in the appellate definition of 03.27.2015 in case No. 33-1227 / 2015 noted that the term for compensation for unused vacation is 21 months after the end of the year, which is given leave (18 months (period, The flow of which should be given a vacation) + 3 months (the term for the appeal of the employee to court)). The fact that vacation in the calendar year was not in full, compensation was not made, it was necessary to be known after each year of work, based on the results of which was not provided.

The situation is easier if the employee used every year the main part of the vacation in the amount of 14 days, and the remaining unused parts of the vacation was accumulated. Here, the Convention establishes that any part of the annual leave above the established minimum duration can be postponed with the consent of the employee for a period greater than 18 months, but not extending for separately established limits (paragraph 2 of Art. 9).

Thus, the remaining vacation can be used by the employee in terms of time (periods) agreed with the employer. And in the case of dismissal, the employer will be obliged to pay compensation for all unused (accumulated) leave (Article 127 of the Labor Code of the Russian Federation).

Nevertheless, the employer should not allow the debt on vacations of employees - first of all, because the work without vacation affects the physical, and on the psychological state of the employee, as a result, labor productivity falls, immunity, the employee more often goes to the hospital. Problems are possible, up to the point that an accident may occur.

In addition, paying compensation when dismissal, the employer can overpay if the employee has increased salary for the last year, since compensation for unused leave is calculated based on the average earnings for 12 months (provision on the features of the procedure for calculating the average wage, approved by the Decree of the Government of the Russian Federation of 24.12. 2007 No. 922).

For your information:

To avoid problems with unused vacation and payment of compensation, some employers after 2 years without vacation draw up the dismissal of the employee with the payment of compensation to him, and then again take it to work. From the point of view of legislation, no violations seem to be. But if this option is constantly applied, then the verifiers can see the violation of the rights of workers: first, they are interrupted by the experience for the next annual paid leave, and secondly, the employee can lose their rights to warranty or payments established in the organization, for example, for continuous work experience.

Employer actions if the employee refuses vacation.

So, what to do if the employee does not use a vacation or uses it not completely, accumulating the remaining parts with the permission of the employer, and for which it may be responsible, figured out. But if the employee does not want to go into this, neither next year, and then he has one reason, then another? Of course, you can enter the position once, the other, but then the problems will be addressed and directly the personnel, and the employer. Therefore, it's not worth letting everything on samonek. An employee should be attracted to disciplinary responsibility, for example, to begin to declare a remark, then reprimand.

But that such punishment is legitimate, some requirements must be performed.

1. In stock There should be a vacation schedule, signed by the head of the personnel department approved by the head of the Organization and coordinated with the trade union if available. It is also desirable that the employee's signature confirms his familiarization with the schedule.

2. 2 weeks before the start of vacation according to the schedule, the employee must be sent notice of the start time of vacation. Getting notified must be confirmed by the employee's signature. If the employee refuses to sign a document, the act should be made.

3. Need an order for the provision of annual leave, with which the employee is familiar. If he refuses, you need to fix this fact.

4. No later than 3 days before the start of vacation, it is necessary to pay the vacation worker (Art. 136 of the Labor Code of the Russian Federation).

Note:

Do not forget that if the employee has not been paid in a timely payment during the annual paid leave or the employee was warned about the time of the beginning of this vacation later than 2 weeks before it began, the employer on a written statement of the employee is obliged to postpone leave for another period agreed with the employee .

5. Exit the employee to work during the vacation must be recorded by acts.

6. Attraction to disciplinary responsibility is carried out according to Art. 192 and 193 of the Labor Code of the Russian Federation.

Well, if the employee continues to go to work during his rest, give him a written notice that the time for his stay at work is not subject to payment, because it is in annual leave in accordance with the approved vacation schedule.

It is clear that attracting administrative responsibility for refusing to go on vacation is an extreme measure intended for those who "maliciously" evade their right to relax, creating problems to the employer. In the usual cases, you can go to meet an employee who asks to transfer his vacation if there are good reasons. Then the employee must write a statement and specify these reasons in it.

If there is no longer any opportunity to endure vacation, and the worker's refusal from recreation suits the employer, then you can send an employee on vacation, for this period to conclude a civil contract with him.

Summarize. If your employees flatly refuse to go on vacation, you can:

transfer the vacation, except when the employee did not go on vacation for 2 years;

dismiss the employee, paying him compensation, and then accept (not advising the abuse in this way);

issue a vacation, and with an employee to conclude civil legal or services;

make a vacation, and the employee is attracted to disciplinary responsibility.

Some employers make out employees vacation for weekends. This, in principle, does not contradict the law, but the extra questions of the verifier will provide.

We still can not remind employers that you cannot refuse to provide vacation on schedule, with the exception of cases of industrial necessity and in the presence of a written consent of the employee. And if the employer illegally refuses an employee on vacation and he went on vacation to unimprovingly, it is impossible to dismiss him for the walk (PP. "D". 39 Resolutions of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 "On the application of the courts of the Russian Federation of the Labor Code of the Russian Federation" ).

The right to relax at least 28 calendar days have all the permanent workers without exception. And if one of such a number of days is not even enough, then others do not go on vacation for years. But this is not only uncomfortable for the employer and, in particular, for personnel and accountants, but also fraught with administrative responsibility. About how many years the employee may not go on vacation and what to do to the employer if some workers do not use their annual rest, talk in the article.

Base for holidays

Under art. 123 TK RF. The order of granting paid leave is determined annually in accordance with the schedule of vacations approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than 2 weeks before the calendar year in the manner prescribed art. 372 TC RF..

At the same time, the schedule of vacations is required both for the employer and for the employee.

When drawing up vacations schedule, you should consider the right of individual categories of workers on vacation at any time and work experience to provide such recreation. Do not forget to include in the chart and not used for the previous years of vacation.

Valet transfer next year

Annual paid leave can be transferred to the next working year. If such a transfer is carried out on the initiative of the employer according to h. 3 tbsp. 124 TC RFTwo conditions must be respected:

The provision of vacation worker in the current working year may adversely affect the normal course of the organization;

The employee agreed to postpone leave for the next working year.

The vacation transferred at the initiative of the employer should be used no later than 12 months after the end of the working year for which it is provided.

By virtue of part 1 Art. 125 TK RF. By agreement between the employee and the employer, annual paid leave can be divided into parts, one of which should be at least 14 calendar days. The question arises: how many such parts should be next worker, if the vacation is fully transferred for this year? That is, a worker should use two vacation for 14 days, and the remaining 28 days in parts or one vacation in the amount of 14 days, and the remaining 42 days in parts?

From the provisions art. 125 TC RF, regardless of how many days of vacation, the employee uses during the year, it can be concluded that one of the parts of the vacation should be at least 2 weeks continuously, and the rest of the holidays for both years can be divided into part in the coordination between the employee and the employer.

Unused days of annual paid leave for previous periods The employer is obliged to take into account when compiling every new vacation schedule.

How old may not be used vacation?

In accordance with S. art. 124 TC RF It is prohibited to failure of annual paid leave for 2 years in a row, as well as failure to provide annual paying holidays to employees under the age of 18 and persons employed in works with harmful and (or) hazardous working conditions.

That is, if, as a general rule, employees may not use annual holidays at least 2 years, then workers under the age of 18 and employed in works with harmful and (or) hazardous working conditions should use vacation every year.

Inspection of the annual paid leave for more than 2 years in a row, as well as failure to provide an unused part of the annual leave when it has been transferred within 12 months after the end of the working year for which it is provided is a violation of labor legislation and in the case of verification by the Labor Inspectorate, a fine may be imposed in accordance with part 1 Art. 5.27 Administrative Code.

According to Letter Rostrud dated 08.06.2007 № 1921‑6 In case the employee has unused annual leave for previous working periods, then it remains the right to use all relying annual paid leave. Annual holidays for previous working periods can be provided either as part of the holiday schedule for the next calendar year, or by agreement between the employee and the employer.

Earlier doubts about this issue arose in connection with ratification. Conventions of the International Labor Organization No.132 "About paid leave"(Further - Convention) According to art. nine Which is the continuous part of the annual paid leave (at least 2 business weeks) are provided and is used no later than during the year, and the balance of annual paid leave is no longer less than 6 months after the end of the year for which the vacation is provided.

Based Convention Some courts denied those who dismissed compensation for unused vacation. True, the reason for the refusal was a pass to the employee of the limitation period. So, the Supreme Court of the Republic of Karelia in Appellate definition of 03/27/2015 in case number 33‑1227/2015 Noted that the term for compensation for unused vacation is 21 months after the end of the year, which is given leave (18 months (the period during which the vacation must be provided) + 3 months (the term for the appeal of the employee to court))). The fact that vacation in the calendar year was not in full, compensation was not made, it was necessary to be known after each year of work, based on the results of which was not provided.

The situation is easier if the employee used every year the main part of the vacation in the amount of 14 days, and the remaining unused parts of the vacation was accumulated. Here Convention It establishes that any part of the annual release in excess of the minimum duration may be postponed with the consent of the employee for a period exceeding 18 months, but not extending for separately established limits ( p. 2 art. nine).

In addition, paying compensation for dismissal, the employer can overpay if the employee has raised the salary for the last year, since compensation for unused leave is calculated based on the average earnings for 12 months ( Regulations on the features of the procedure for calculating average wagesapproved Decree of the Government of the Russian Federation of December 24, 2007 No. 922 ).

To avoid problems with unused vacation and payment of compensation, some employers after 2 years without vacation draw up the dismissal of the employee with the payment of compensation to him, and then again take it to work. From the point of view of legislation, no violations seem to be. But if this option is constantly applied, then the verifiers can see the violation of the rights of workers: first, they are interrupted by the experience for the next annual paid leave, and secondly, the employee can lose their rights to warranty or payments established in the organization, for example, for continuous work experience.

Employer actions if the employee refuses vacation

But that such punishment is legitimate, some requirements must be performed.

3. Need an order for the provision of annual leave, with which the employee is familiar. If he refuses, you need to fix this fact.

4. No later than 3 days before the start of the vacation, it is necessary to pay vacation workers ( art. 136 TC RF).

Do not forget that if the employee has not been paid in a timely payment during the annual paid leave or the employee was warned about the time of the beginning of this vacation later than 2 weeks before it began, the employer on a written statement of the employee is obliged to postpone leave for another period agreed with the employee .

5. Exit the employee to work during the vacation must be recorded by acts.

6. Attraction to disciplinary responsibility is carried out according to art. 192.and 193 TC RF.

Summarize. If your employees flatly refuse to go on vacation, you can:

Transfer the vacation, except when the employee did not go on vacation for 2 years;

Dismiss the employee, paying him compensation, and then accept (not advising the abuse in this way);

Make a vacation, and with an employee to conclude a civil contract contract or provision of services;

Make a vacation, and the employee is attracted to disciplinary responsibility.

Some employers make out employees vacation for weekends. This, in principle, does not contradict the law, but the extra questions of the verifier will provide.

We still can not remind employers that you cannot refuse to provide vacation on schedule, with the exception of cases of industrial necessity and in the presence of a written consent of the employee. And if the employer illegally refuses the employee on vacation and he went on vacation to unimprovingly, to dismiss him for the walking it is impossible ( pP. "D" p. 39 Resolutions of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No.2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation").

In full swing, season holidays. Many employers in drawing up the schedule of vacations are trying to "release" employees in the summer, since the scope of work, as a rule, is reduced during this period (with the exception of of course certain employers). However, what if the employee, for any reason, refuses to go on vacation? Is it possible to "force" to go to a well-deserved holiday or still have to transfer leave? Let's deal with this question from the point of view of the law.

One of the types of vacation is the annual primary paid leave. This type of vacation in accordance with Articles 122 and 123 of the Labor Code of the Russian Federation is provided with an employee annually. Vacation for the second and subsequent years of work can be provided at any time of the working year in accordance with the priority of the provision of annual paid holidays established by the employer.

The severity of the granting vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization, no later than two weeks before the calendar year.

Article 123 of the Labor Code of the Russian Federation expresses that vacation schedule is mandatory both for the employee and for the employer. The employee is not entitled to refuse to go into an annual paid vacation in accordance with the vacation schedule, if the employer complied with the deadline for the notification of its start (no later than two weeks before the start date of vacation (Article 124 of the Labor Code of the Russian Federation). In the event that the employer is properly adequately. (under the painting) notified the employee about the beginning of the holiday, paid the employee of "holidays", and the employee refuses to go on vacation in accordance with the schedule, the employer has the right to "forcibly" to send an employee on vacation, and in case of its refusal - to apply the disciplinary measures to such an employee Recovery for violation of work discipline.

Thus, the employee must use an annual paid vacation in accordance with the vacation schedule, and the employer must submit it in this period.

The legislation provides for the possibility of transferring leave to the next working year under certain circumstances. So, according to part of the third part of Article 124 of the Labor Code of the Russian Federation in exceptional cases, when the provision of holidays to the employee in the current working year may adversely affect the normal course of the organization, an individual entrepreneur, allowed with the consent of the employee, making leave for the next working year. At the same time, vacation should be used no later than 12 months after the end of that working year for which it is provided.

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