Every person has the right to a well-deserved rest during the year. But quite often an employee is faced with a situation where leave is not signed. There can be quite a lot of reasons for this, and accordingly, there can be many solutions too. What to do in such a situation will be described below.

At each enterprise, management draws up a special vacation schedule, which necessarily takes into account all the wishes of the employees, as well as the main production and organizational capabilities of the employer. The direct obligation to comply with such an established schedule rests with both the employer and the employees; this is a legal employment relationship.

If vacation is scheduled, it can only be used with the consent of the employee, and also under the certain condition that all vacation rights were used last year.

Important! If a manager does not grant vacation leave for two years in a row, this is a gross violation of labor legislation in general and in relation to an individual employee.

This condition is specified in articles 123 and 124 Labor Code RF. In a situation where the employer refuses to provide you with legal rest, it is worth reminding him of these articles. Let's take a closer look at who is granted annual leave, how rest time is transferred throughout the year, and who has the right to additional rest provided on special grounds.

Vacation before the end of six months of work	For women during pregnancy and childbirth; under 18 years of age; employees who adopted children under three months of age; other cases provided for by law
Extension and transfer	Due to temporary disability; performance of government duties; if the employee was not paid for annual leave on time or was notified about it later than two weeks	Federal Law of June 30, 2006 N 90-FZ
Additional rest time	Workers who are employed in hazardous or hazardous work; employees with irregular working hours; for those who work in the Northern regions	Federal Law of June 30, 2006 N 90-FZ

All this is necessary to know in order to obtain a more effective result when deciding on the provision of legal rest.

Actions if you are not allowed to go on vacation as scheduled

There are certain actions that must be taken if the employer does not allow vacation as scheduled:

• You can fight with the employer only for the period of rest that was recorded in the drawn up schedule.
• An employee has the right to receive his first vacation immediately after completing six months of work at the enterprise.
• The rest period must be included in the general schedule and must be approved by order, which each of the organization’s employees must be familiar with.

If there is no such schedule, application or order, you will have to be patient and wait for approval from your employer.

Important! Taking legal leave is an employee's right as well as an employer's responsibility. Solution this issue regulated by law.

Compromise with the employer regarding vacation problems

When such a problem arises, in approximately 40% of cases the issue is resolved through a polite conversation with the director of the company or enterprise. You should never miss the opportunity to find a compromise so that leaving does not in any way disrupt the plans and affairs of the employer or employee and does not negatively affect the production process.

There are many cases where a certain loyalty of employees and their agreement to a small time shift were an important argument when deciding who to promote. Another option for such loyalty is the fact that an employee can undertake an obligation to perform urgent work during his vacation. In this situation, both parties show loyalty.

The situation will be much worse if an agreement cannot be reached and the boss does not sign the vacation application.

Here you will have to be guided by the norms of the Labor Code of the Russian Federation, which set out all the rights to annual rest.

Violation of the law regarding the provision of legal leave faces quite serious penalties. Up to 50 thousand rubles can be written off from the organization’s account, and the manager himself can be fined at least 5 thousand. Such penalties are provided for in Article 5.27 of the Labor Code “On Administrative Violations”. If this issue becomes acute enough, it is easier for the employer to let the person go than to pay a fine. Also one of the common situations between an employer and an employee is. This problem is also easily solved in the legal field.

Contacting the inspectorate if a vacation is prohibited

Whenever difficult situation with vacation, you can move on to more drastic measures, in particular, contact a special State inspection labor with a written complaint against the employer. As a rule, after such a statement, a commission will visit the enterprise. The inspector will check the legality of compliance with the norms for granting leave in relation not only to one applicant, but also to all employees of the company.

The application must be written in any written form with maximum detailed description the essence of the problem. It is sent by mail or handed to the inspector.

Based on the results of the inspection, the manager may be held accountable under Article 5.27 of the Labor Code of the Russian Federation, thereby obliging him to provide employees with leave that will fully comply with the approved schedule.

Radical measures to get leave

The most radical method of defending the right to leave is to contact not only the special labor inspectorate, but also the prosecutor’s office at the place of work or residence of the company manager. The basis for this may be a serious violation of the Labor Code, denial of leave for the last two years.

In the process of resolving this issue, the prosecutor is obliged to take all measures provided for by law to respond to a direct violation of labor law. As practice has shown, the employer takes appropriate measures immediately after the first call.

It is recommended that before taking this step, you carefully understand the problem that has arisen and try to understand why the manager does not want to allow you to go on vacation. Usually, if the main motives of the manager are clear, you can try to help him in resolving such an issue and still find a mutual compromise.

If permission to leave is not given, this is a serious conflict situation with a violation of labor laws.

Before you take action radical measures, it is worth trying all possible reasonable and peaceful methods. There are quite a lot of solutions to the problem, starting from individual negotiations with the head of the company and ending with the involvement of government agencies or . The law is on your side and you are sure to.

Problem

Good day!

The question is this: I have been working in the company for more than 11 months, according to the vacation schedule, I have it in August. I wrote an application for leave, the boss signed it - “I object.” The refusal to grant leave to workers is motivated by production necessity. Are the boss's actions legal? How long can management delay vacation, if they have the right to do so?

I read in the Labor Code of the Russian Federation that the vacation schedule is mandatory for both employees and the employer.

Solution

According to Article 123 of the Labor Code of the Russian Federation, the order of provision of paid leave is determined annually in accordance with schedule vacations 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 start of the calendar year in the manner established Article 372 of this Code for the adoption of local regulations.

The vacation schedule is mandatory for both the employer and the employee.

The employee must be notified of the start time of the vacation by signature no later than two weeks before it begins.

Article 14 of the Labor Code of the Russian Federation establishes cases of postponement of vacation or its extension

Annual paid leave must be extended or postponed to another period determined by the employer taking into account the wishes of the employee in the following cases:

temporary disability of the employee;

the employee performs state duties during his annual paid leave, if for this purpose labor legislation exemption from work is provided;

in other cases provided for by labor legislation and local regulations.

If the employee was not promptly paid for the period of annual paid leave or the employee was warned about the start time of this leave later than two weeks before its start, then the employer, upon a written application from the employee, is obliged to postpone the annual paid leave to another date agreed with the employee.

In exceptional cases, when granting leave to an employee in the current working year may adversely affect the normal course of work of the organization, individual entrepreneur, it is allowed, with the consent of the employee, to transfer the vacation to the next working year. In this case, the leave must be used no later than 12 months after the end of the working year for which it is granted.

It is prohibited to fail to provide annual paid leave for two years in a row, as well as to not provide annual paid leave to employees under the age of eighteen and employees engaged in work with hazardous and (or) dangerous conditions labor.

Thus, according to the above rules, vacation can be postponed to another time only with your consent.

Contact your employer in writing, indicating the articles of the Labor Code of the Russian Federation stating that his actions do not comply with the law. Write down that you have already planned some personal affairs for this time, maybe paid for a trip somewhere, and if the vacation happens at another time, you will suffer losses, which you can then recover from the employer. The letter is written in two copies, you register one with the employer, and leave the second with a mark for yourself. Or by registered mail with acknowledgment of delivery and a list of the letter's attachments.

By writing such a letter you will “free your hands” and can go on vacation without an order. And in the event of dismissal for absenteeism, any court will reinstate you (just make sure you have a copy of the approved vacation schedule).

But this is a conflict in any case, so it is always better to agree in advance.

Solution

Good afternoon

Of course, everything is correct that the vacation schedule is a document binding on both the employer and the employee. And you must go on vacation as scheduled; in general, you must be notified about it two weeks before the start of your vacation. Nowadays it is not even necessary to write an application; the main thing is a notification and an order for leave.

But, I don’t recommend going on vacation without permission, and also with me the Resolution of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, because This will be precisely an unauthorized leave and yes, perhaps dismissal as an athlete. And yes, perhaps any court will reinstate you, but you need this stress, these court hearings, etc.

In your case, I still recommend finding a compromise with your employer. The consultant very well recommended that you write a registered letter with a notification and a list of attachments, but I recommend a slightly different text. And in the text indicate that in accordance with Article 123 of the Labor Code of the Russian Federation The order of provision of paid 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 start of the calendar year.

The vacation schedule is mandatory for both the employer and the employee.

The employee must be notified of the start time of the vacation by signature no later than two weeks before it begins. But for some reason they forgot to notify you of the start of the vacation against signature, and you would like to receive a written answer to the reason for not granting you vacation in accordance with the vacation schedule, and that the reasons be specific, and not vague and general, such as production necessity , because this need must be clarified and specified. And yet, if certain reasons are indicated, then you would like to find a compromise on this issue, and therefore, in accordance with Articles 124 and 125 of the Labor Code RF, you would like to familiarize yourself with the order, which will indicate the specific dates for the transfer of your omission.

If the reasons for not providing an optus are not specified or are vague and unreasonable and not respectful, then you reserve the right to appeal to the authority that deals with the resolution of labor disputes.

By the way, here's from Resolution of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 on dismissal for absenteeism:

39. If employment contract terminated with the employee under subparagraph “a” of paragraph 6 of part one Article 81 Labor Code of the Russian Federation for absenteeism, it must be taken into account that dismissal on this basis, in particular, can be made:

d) for unauthorized use of vacation days, as well as for unauthorized leave (main, additional). It is necessary to take into account that the use of rest days by an employee is not considered absenteeism if the employer, in violation of the statutory obligation, refused to provide them and the time the employee used such days did not depend on the discretion of the employer (for example, a refusal to provide an employee who is a donor with rest days). in accordance with part four Article 186 Code of rest days immediately after each day of donating blood and its components).

And by the way, going on leave without permission, because... violated the vacation schedule, it will be an unauthorized leave, i.e. truancy.

If you want to run around the courts, then of course you can go around the courts, but is the vacation worth it? The only thing is, if in your case there is personal hostility, and this is possible, and if you have already paid for the trip and bought tickets, etc., then you know it’s probably worth restoring justice.

The Labor Code provides for the right of the employer, if this is necessary to maintain the normal rhythm of the organization’s work (Article 124 of the Labor Code).

The main condition for the legality of the transfer is the employee’s consent to this in writing.. Responsibility for refusing such an offer is not established by law, therefore, if it is important for an employee to go on vacation exactly during the planned period, then he may well refuse the employer.

The employer does not have the right to refuse to allow an employee to go on vacation. He can only transfer this period to another period with the consent of the employee. This procedure is formalized by issuing a transfer order.

Who should not be given leave?

You cannot refuse leave:

• pregnant women before or after maternity leave;
• persons who have adopted a baby under three months of age;
• spouse of a woman in maternity leave;
• other categories of workers provided for by law.

For the listed persons, the privilege of receiving leave has been established; they do not even need to wait for it to arrive; it is enough to write an application to the employer requesting its provision.

This application cannot be denied.

It is prohibited not to provide vacation during the year to persons under the age of majority or those who are working.

Vacation cannot be rescheduled for two years in a row, that is, if an employee’s vacation has already been rescheduled once, then when the time comes for the second time, it cannot be rescheduled again, even with the employee’s consent.

For employees who do not have any privileges in terms of receiving leave, it is provided and transferred on a general basis.

Reasons for refusal

The law does not provide clear criteria for determining whether an employee going on vacation will negatively affect the work of an organization or entrepreneur. The employer decides this at his own discretion and agrees on this position with the employee

As an example possible reason To transfer leave, you can cite a situation where the organization has two employees doing the same job, for example, a lawyer. Let's say that the time has come for one of them to go on vacation, but shortly before that, the second employee went on sick leave. In such a situation, if you let the first employee go on vacation, the organization will be left without legal support. If you can’t do without a lawyer, then the manager can ask the employee to postpone the vacation until the second specialist returns from sick leave.

Also, an organization may urgently need all employees to work when receiving a large order from an enterprise producing some product.

In such a situation, the manager may have reason to believe that if one of the employees working in the production sector of the enterprise goes on vacation, then it will not be possible to complete the order within the time period agreed with the customers. He may ask for the postponement of all vacations falling on this period.

What should an employee do if he is not allowed to go on vacation?

If the employer, despite receiving a refusal to reschedule the vacation, still does not provide it to the employee, although the time for provision has approached, according to the approved schedule, you can apply to various authorities for the restoration of your violated right.

Such an appeal may be sent to the labor inspectorate, trade union or court.

It is advisable to attach copies of documents confirming the right to leave, for example, a copy of the leave schedule, as well as documents confirming the fact of being in labor relations with the employer.

An employee does not have the right to go on leave without permission before an order to grant it is issued. Otherwise, the employer will receive grounds for it.

That is, if you apply somewhere with a complaint, you need to wait until it is will consider, oblige the employer to provide leave and he will comply with this instruction.

Before writing complaints, you can talk to the employer and inform him that taking leave is necessary, for example, because vouchers have already been purchased for this period and vacations for other family members have been agreed upon so that everyone can relax together.

Also in this conversation, if after the first part of the conversation it was not possible to reach agreement, we can say that conflict situation I don’t want to create it, but it interferes with the employee’s legal right to rest, and if the leave is not granted, this will be followed by an appeal “to the right place.”

We have already discussed where to go above..

After this conversation, a competent employer, most likely, not wanting to have unnecessary contact with regulatory authorities, realizing that he is obviously the losing party in this situation, will allow a persistent employee to go on vacation. Or, perhaps, he will do this simply, putting himself in the position of a vacationer, because the boss is the same person, and if you build a dialogue correctly, he will understand everything.

Every employee has the right to vacation: even he likes his job, it is impossible to work all year round nonstop. But it happens that employer refuses leave. How legal is this? What to do in this case?

Much depends on what kind of leave you are applying for, as well as on your length of service at the company/organization and some other factors. let's consider most common cases when the employer refuses leave.

The employer denies annual paid leave

Every employee has the right to go on annual paid leave after six months of continuous work. If you have worked for less than six months, your employer may not provide you with leave.(unless you are under 18 years old, or have adopted a child under 3 months old, or are going on maternity leave / have just come out of maternity leave). Leave may be granted to you by agreement of the parties, but the employer is not obliged to provide it to you.

However, as soon as your work experience reaches six months, you must be given leave. The vacation schedule is approved before the start of the next calendar year (no later than two weeks before January 1), and two weeks before the start of your vacation, the employer is obliged to notify you of its start time against signature. If you are not given leave as scheduled, this is a violation of the Labor Code.

What to do in this case? If you cannot resolve the problem amicably with your employer, you will have to contact the labor inspectorate or even go to court. But keep in mind that after this you are unlikely to remain working in this place: most likely, the employer will try to “survive” you (and would you really want to stay working for a person with whom you managed to come to an agreement only after the intervention of the labor inspectorate)? But you will receive monetary compensation for unused vacation upon dismissal.

The employer denies leave at his own expense

Leave at your own expense (leave without pay), as opposed to annual paid leave, the employer is not required to provide. He may do it... or he may not. It all depends on how valid he considers the reasons why you needed a vacation at your own expense.

Of course, the Labor Code lists cases in which the employer is obliged to provide you with leave without pay. For example, the death of a close relative, the birth of a child, or marriage registration are considered sufficient good reasons to provide such leave. Full list We gave such cases in the article.

If your case is on this list, try waving the Labor Code in front of your bosses and threatening them with a labor inspectorate. If it doesn’t help, either accept the fact that you won’t be given a vacation, or carry out your threats. If your case is not included in this list, there is only one option left - come to terms with it.

The employer denies leave with subsequent dismissal

Some employees take regular paid leave before resigning. In this case, the two weeks that the employee must work after submitting his resignation letter will be spent on vacation, and immediately after the vacation he will be considered dismissed. What to do if they don't give it to you?

Leave followed by dismissal is granted if it coincides with the one approved for this year vacation schedule. If this is your case, your employer has no right to refuse you leave. If not, such leave can only be granted by agreement of both parties. If the employer does not agree, he has the right to refuse you leave with subsequent dismissal.

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Denial of leave allegedly due to production needs

Hello, I work in a trading company, on September 5 we have a reception and retake test in our store, I take up my position new director. I am a merchandiser and on September 23rd I was denied leave, allegedly due to production needs. There will be a merchandiser at the store, there is personnel reserve with new merchandisers, but they need me, because... I fully know the intricacies of working in this particular store. What to do in this situation?

Lawyers' answers

Best answer

Berezutsky Vladimir Nikolaevich(08/27/2013 at 17:40:13)

Good afternoon. Yes, indeed, in accordance with Article 123 of the Labor Code of the Russian Federation, the order of granting paid vacations is determined by the vacation schedule approved by the employer. But many employers, contrary to this legal requirement, do not draw up or approve vacation schedules. Unfortunately, your question does not indicate whether such a schedule exists in your organization. In order not to repeat what my colleagues correctly indicated, I will consider a situation that you may have - in the absence of a vacation schedule.

As stated in the same Article 123 of the Labor Code of the Russian Federation, the employee must be notified of the start time of the vacation against signature no later than two weeks before its start. Of course, if there is no schedule, no one notified you about the start of the vacation. You write that you have been denied entry since September 23. In this regard, questions arise: have you contacted your employer with a written application to grant you leave from September 23? Did they issue an order for the unified T-6 form? Have you read this order for signature? If all this happened, then, as your colleagues correctly pointed out, you must be given leave from September 23. What if there was no such order? Then, in the absence of a vacation schedule, you do not have notification of the start of vacation, your application and order to grant you vacation legal grounds demand leave from September 23. Do you understand? In such a situation, you are forced to continue working until your vacation is approved. It should be noted here that an employee’s unauthorized going on vacation is absenteeism, that is, a gross violation of labor duties, for which the employer has the right to apply this type of disciplinary action, as dismissal (subparagraph “a”, paragraph 6, Article 81 of the Labor Code of the Russian Federation).

Nikolai Nikolaevich(27.08.2013 at 12:03:54)

Hello! No production necessity can affect your vacation. The right to rest is guaranteed by the Constitution of the Russian Federation; no one has the right to infringe on it and not under any pretext. HERE IS THE RELEVANT ARTICLE GOVERNING HOLIDAYS. Article 122 of the Russian Federation. Procedure for granting annual paid leave Paid leave must be provided to the employee annually. The right to use vacation for the first year of work arises for the employee after six months of continuous work with this employer. By agreement of the parties, paid leave may be granted to the employee before the expiration of six months. (as amended by No. 90-FZ dated June 30, 2006) Before the expiration of six months of continuous work, paid leave at the request of the employee must be provided to: women - before maternity leave or immediately after it; employees under eighteen years of age; employees who adopted a child (children) under the age of three months; in other cases provided for by federal laws. Leave for the second and subsequent years of work can be granted in any year in accordance with the order of provision of annual paid leave established by the employer. Since you have a serious company, A MONTH BEFORE THE YEAR IN WHICH THE VAKES WILL BE PROVIDED, A VACATION SCHEDULE SHOULD BE DRAFTED AND PUBLICLY DISPLAYED. According to this schedule, you must go on vacation. Deviation from the schedule is possible only at your request, and not at the initiative of the employer. Therefore, if the manager insists on continuing work and postponing vacation, you can contact the labor inspectorate, they will conduct an inspection and point out violations. THE LAW IS ON YOUR SIDE! SUCCESS IN YOUR DEFENSE!

Khorokhordin Evgeniy Vasilievich(08/27/2013 at 12:05:15)

Good afternoon. Firstly, you must make a fundamental decision whether you will argue with the employer (I think you are aware of the possible consequences).

Secondly, the application you submitted is not the employer’s obligation to provide you with leave within the time frame specified in the application. For this there must be an approved vacation schedule

Mikhailovsky Yuri Iosifovich(08/27/2013 at 12:13:29)

Good afternoon

Article 114 of the Labor Code Russian Federation. Annual paid holidays

Employees are provided with annual leave while maintaining their place of work (position) and average earnings.

Article 122 of the Labor Code of the Russian Federation.

Procedure for granting annual paid leave

Paid leave must be provided to the employee annually.

The right to use vacation for the first year of work arises for the employee after six months of continuous work with this employer. By agreement of the parties, paid leave may be granted to the employee before the expiration of six months.

Before the expiration of six months of continuous work, paid leave at the request of the employee must be granted:

for women - before maternity leave or immediately after it;

employees under eighteen years of age;

employees who adopted a child (children) under the age of three months;

in other cases provided for by federal laws.

Leave for the second and subsequent years of work can be granted at any time of the working year in accordance with the order of provision of annual paid leave established by a given employer.

In exceptional cases, when the provision of leave to an employee in the current working year may adversely affect the normal course of work of an organization or individual entrepreneur, it is allowed, with the consent of the employee, to transfer the leave to the next working year. In this case, the leave must be used no later than 12 months after the end of the working year for which it is granted.

Article 124 of the Labor Code of the Russian Federation.

Extension or transfer of annual paid leave

It is prohibited to fail to provide annual paid leave for two years in a row, as well as to not provide annual paid leave to employees under the age of eighteen and employees engaged in work with harmful and (or) dangerous working conditions.

In Russia there is a violation labor rights is widespread. You can submit Applications to the State Labor Inspectorate of your region, to the Prosecutor's Office, to the Court (there is no state duty)

Zhvakina Veronika Alekseevna(08/27/2013 at 12:20:12)

Hello, in accordance with Article 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. Moreover, at least one part of this leave must be at least 14 calendar days.

Recall of an employee from vacation is allowed only with his consent. The part of the vacation unused in this regard must be provided at the employee’s choice at a time convenient for him during the current working year or added to the vacation for the next working year.

Employees under the age of eighteen, pregnant women and employees engaged in work with harmful and (or) dangerous working conditions are not allowed to be recalled from vacation.

So you should be given notice of the postponement of your vacation and if you do not agree with it, then write memo in which you justifiably state your disagreement. See for yourself whether it’s worth going into conflict with management over a vacation; if it’s worth it, then take the risk.

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