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Publication date: 18.04.2024
active and purposeful military lawyer with more than 4 years of experience
There are quite a few cases when an employee resigns after a vacation that was granted to him "in advance", that is, for a period that he has not yet worked. What are the actions of employers in such cases?
The first part of Article 6 of the Law of Ukraine dated November 15, 1996 No. 504/96-BP "On Vacations" (hereinafter - Law No. 504) states that annual basic leave is granted to employees with a duration of at least 24 calendar days per working year, which counted from the day of conclusion of the employment contract.
Vacation without taking into account the time actually worked
An employer can grant an employee vacation without taking into account the time actually worked during the working year already after the end of six months of continuous work at this enterprise (Part 5, Article 10 of Law No. 504). However, even before the end of the six-month period of continuous work, the employee may be granted leave without taking into account the time actually worked by him, if the employer has no objection to this.
Also, in part seven of Article 10 of Law No. 504, a considerable list of categories of employees to whom vacation can be granted "in advance" is laid out.Read also: Is monetary compensation accrued for unused days of annual leave to employees hired for temporary or community work on the referral of the employment center?
How to keep extra vacation pay in case of dismissal
If an employee resigns before the end of the working year, for which he has already received a full-time vacation, then the second part of Article 127 of the Labor Code of Ukraine (hereinafter - the Labor Code of Ukraine) and the first part of Article 22 of Law No. 504 allow deduction of the amount of accruals from wages for vacation days that were granted at the expense of the unworked part of the working year:
In the case of dismissal of an employee before the end of the working year, for which he has already received a full-time vacation, to cover his debt, the owner or the body authorized by him shall deduct from the salary for the vacation days that were granted at the expense of the unused part of the working year.
Also, the second paragraph of the second part of Article 127 of the Labor Code states:
Deductions from the wages of employees to cover their debts to the enterprise, institution and organization where they work may be carried out by order (order) of the employer:
2) upon dismissal of an employee before the end of the working year for which he has already received leave, for unused leave days. Deductions for these days are not carried out if the employee is dismissed from work for the reasons specified in clauses 3, 5 and 6 of Article 36 and clauses 1, 2 and 5 of Article 40 of this Code, as well as when being sent to study and in connection with a transfer for retirement...
Let's consider the above on an example.
EXAMPLE
Condition. The employee, who was hired on February 26, 2024, submitted an application for annual basic leave of 12 days. from 06.05.2024. While working at the enterprise, the employee has the right to only 5 k. days. vacation, but according to the decision of the employer, he was granted vacation for 12 days.
The salary is UAH 10,000. The size of the average daily salary is UAH 163.93.
During the vacation, the employee filed a resignation letter on 05/31/2024. The employee's actual work period is 96 days.
Decision. First of all, you need to calculate the duration of vacation that the employee actually earned during the period of work at the company:
24 days / (366 k. days – 6 k. days) x 96 k. days. = 6.4, i.e. 6 days.
Thus, the employee must return vacation pay in the amount of UAH 983.58 (UAH 163.93 x 6 days).
The amount owed should be withheld during the final settlement with the employee upon dismissal, that is, the amount of wages accrued for days worked in May should be reduced by UAH 983.58.Read also: The employee retires: whether to withhold funds from previously used vacation
An example of wording about deduction in the order
Deductions from wages are carried out on the basis of a dismissal order, in which a separate instruction is provided for the accounting department to make these deductions, for example, with the following content:
"Accounting on the basis of Part 2 of Art. 127 of the Criminal Code of Ukraine and Part 1 of Art. 22 of the Law of Ukraine dated November 15, 1996 No. 504/96-VR "On Vacations" to deduct O.O. Kravchuk from his salary. to cover his arrears for 6 (six) calendar days of annual basic leave, which were granted to him at the expense of the unworked part of the working year."
If the employee's debt for "vacation" is greater than the amount of earnings
It is quite possible that the employee's debt in the part of "vacation" will be greater than the amount of earnings accrued to him at the time of dismissal. In this case, the employee must return the amount owed
to the enterprise by depositing it in the cash register or on the account of the enterprise. At the same time, please note that in such a case, the employee must return only the amount of vacation pay actually received without taking into account the amount of personal income tax and personal income tax. Let's say, for the example given above, such an amount should be:
UAH 983.58 – UAH 983.58 x 18% – UAH 983.58 x 1.5% = UAH 791.78.
If the employee refuses to do this, he will have to go to court. As stated in the letter of the Ministry of Labor dated January 24, 2007 No. 9/13/133-07, if there is a need for damages from an employee who has resigned, the employer has the right to file a claim for damages in court.
Earlier they wrote: The arrears of wages have been paid according to the issued order
Who is not withheld extra "vacation"
The second part of Article 22 of Law No. 504 lists the cases when deductions from the wages of employees who are dismissed are not made.This is a dismissal in connection with:
- conscription or acceptance (admission) to military service, referral to alternative (non-military) service;
- transfer of an employee to another company with his consent or transfer to an elected position in cases provided for by the laws of Ukraine;
- refusal to transfer to work in another area together with the enterprise, as well as refusal to continue working in connection with a significant change in working conditions;
- changes in the organization of production and work, including the liquidation, reorganization or repurposing of the enterprise, reduction of the number or staff of employees;
- detection of the employee's incompatibility with the position held or the work performed due to insufficient qualifications or a state of health that prevents the continuation of such work;
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- failure to report to work for more than four months in a row due to temporary incapacity, not counting leave due to pregnancy and childbirth, if the legislation does not establish a longer period of retention of the workplace (position) in case of a certain illness;
- reinstatement of an employee who previously performed this work;
- referral to study;
- retirement.
Also, deductions from wages for unused vacation days in the event of an employee's death are not made.
Read also: Dismissal: documentation and final settlement with the employee
Limitations on the amount of deductions
We advise you to pay attention to the provisions of the first part of Article 128 of the Criminal Code:
With each payment of wages, the total amount of all deductions cannot exceed twenty percent, and in cases separately provided for by the legislation of Ukraine, fifty percent of the wages due to be paid to the employee.
However, in case of dismissal of the employee, Article 22 of Law No. 504 prevails, not the first part of Article 128 of the Labor Code, because with the termination of the employment relationship between the employee and the employer, the latter will in fact only have the option of recovering the employee's debt in court.
However, the provision of Article 129 of the Labor Code, which prohibits deductions from severance pay, compensation and other payments that are not subject to enforcement under the law, must be taken into account when making deductions in the part of vacation pay.
Also, in accordance with the first part of Article 73 of the Law of June 2, 2016 No. 1404-VIII "On Executive Proceedings", recovery cannot be applied, in particular, to the following payments to the employee:
- severance pay, which is paid in case of dismissal of an employee;
- compensation to the employee for expenses in connection with the transfer, assignment to another location or business trip;
Read also: Vacation must be used during the calendar year
– field support, wage supplements, other funds paid instead of per diem and apartment allowance;
– assistance in connection with pregnancy and childbirth;
- assistance for treatment;
- funeral assistance.
