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The employee is entitled to severance pay upon dismissal in the amount of the monthly average earnings:
If the firm is liquidated;
if there is a reduction in the number of employees;
if the termination of the employment contract was due to a violation of the rules for its conclusion through no fault of the employee. If the violation of the rules of the employment contract was committed through the fault of the employee, then the severance pay is not paid to him (part 3).
Personal income tax is not withheld from severance pay upon dismissal (clause 3). Employees with whom an employment contract has been concluded for a period of up to two months is not paid a dismissal benefit (part 3). provides additional guarantees to the head of organizations, his deputies and the chief accountant in case of dismissal on special grounds (Articles 181, 279 of the Labor Code of the Russian Federation).
Upon termination of the employment contract due to the liquidation of the organization or the reduction of staff, the employee retains the average monthly earnings for the period of employment, but not more than two months (including severance pay). In exceptional cases, by decision of the employment service, the firm must keep the employee's average earnings for the third month after dismissal (part 2).
Dismissal payments in the amount of average earnings for the period of employment are not made if the dismissed employee is a part-time worker.
Upon termination of the employment contract, the payment of all amounts due to the employee from the employer, including compensation upon dismissal, are made on the last day of work (part 4 of article 84.1 of the Labor Code of the Russian Federation). If the set day coincides with a weekend or a non-working holiday, dismissal payments are made on the eve of that day.
Unfortunately, mass layoffs and delayed wages have become a frequent occurrence lately. If payments upon dismissal are made in violation of the established deadlines, the employer is obliged to reimburse them with payment of interest: in the amount of not less than one three hundredth of the refinancing rate of the Central Bank of the Russian Federation effective at that time (). In cases of dismissal in violation of the established procedure, the court has the right to make a decision to compensate the employee for moral damage by paying monetary compensation (part 9 of article 394 of the Labor Code of the Russian Federation).
Upon dismissal of an employee, they draw up:
Dismissal order in the form No. T-8 (
After the order for dismissal has been issued, the question arises: what payments upon dismissal does the legislation provide? The Labor Code of the Russian Federation contains rules regarding monetary compensation upon dismissal for vacations that have not been used, severance pay and salaries for hours worked. Payment of money after dismissal must be made within a period not exceeding three days after the order is issued.
Amount of compensation upon dismissal
The dismissal procedure consists of several stages:
- Writing a statement (if it is of your own free will).
- Issue of an order.
- Settlement with an employee and issuance of a work book.
So, what is eligible for dismissal of your own free will?
An employee has the right to claim the following payments:
- salary for hours worked;
- compensation for vacations that have not been used;
- thirteenth salary (if this is stated in the local acts of the organization).
Compensation for leave that was not used by the employee should be carried out according to the following formula:
K-compensation for vacation that was not used by the employee;
M is the employee's average daily wage;
N is the number of vacation days.
N is defined as follows:
2.33 * number of months worked for which no vacation was granted.
For reference! This formula is approved by the Ministry of Labor of the Russian Federation and is used, as a rule, to calculate the usual calendar leave of 28 days. If we are talking about longer vacations, then for clarification we recommend contacting the labor inspectorate or dividing the total number of vacation days by the number of months worked. In addition, the calculation does not take into account the month in which less than half of the days were worked.
M is defined in the following way:
M = C / 12 * 29.4, where
C is the employee's total income for the calendar year that preceded the dismissal.
Payments to an employee upon dismissal of their own free will and for other reasons must be made on time. The legislator establishes a rule according to which the employer pays the employee compensation in the amount of at least 1/300 of the refinancing rate, which is set by the Central Bank of the Russian Federation on the day of accrual in the event that he did not settle with the dismissed on time.
The compensation is calculated in the following way:
K = C / 100% * 1/300 * S * D, where
K compensation;
C-refinancing rate;
S is the amount owed by the employer to the employee;
D is the number of days overdue.
At the same time, the calculation of payments upon dismissal will not be influenced by what remuneration system is used in the company: salary, piecework, based on hourly, daily or monthly tariff rates. However, all these systems still have their own characteristics in the calculation. Therefore, the above formulas are applicable insofar as they do not contradict the legislation and correlate with the wage system at the enterprise.
Settlement period with the dismissed employee
Payment of money upon dismissal, in accordance with the provisions of Art. 140 of the Labor Code of the Russian Federation, carried out on the last day of a citizen's work. But if the employee was absent from the workplace on the last day, then settlement with him is made no later than the day that follows the day the employee applies for payments. If the parties do not reach an agreement on the final amount, then the employer is obliged to pay that part of the money that he does not dispute.
When an employee goes on vacation with subsequent dismissal, that is, he is no longer going to work at the enterprise, then the last day before the vacation will be considered the settlement day. The employer is obliged to give the employee a work book and calculate all payments.
If an employee is on sick leave and decided to quit, then he has the right to write a statement any day. The employer makes payments to him on the last day of work, even if he falls on sick leave.
Difference between compensation and severance pay
The severance pay will not apply to wages, as its size has nothing to do with the quality and duration of the employment relationship. Moreover, the benefit is not a compensation payment either. Allowance is a monetary allowance that temporarily replaces wages or serves as an addition to the basic income, or acts as an aid due to the lack of a source of income. The severance pay is paid only from the funds of the employer and in no case will it relate to social payments that are carried out at the expense of the state. Despite the general legal basis - dismissal, benefits and compensations, the circumstances of payments differ. In particular, if we are talking about compensation, then they are due to all employees, regardless of the reason for dismissal. For example, compensation for unused vacation will be paid to a citizen even if he was fired due to a layoff or of his own free will. But in order to receive severance pay, you need to get into certain legal situations, the list of which is established in the Labor Code of the Russian Federation. For example, dismissal due to liquidation of a company or refusal to transfer to another location.
The second difference between compensation and benefits is that, as a rule, the size of the severance pay is set in the Labor Code of the Russian Federation - the average monthly salary, etc .; but the amount of compensation for unused vacation has only a calculation formula, but the result may be different, since it is not known in advance for what period the employee did not take vacation, etc.
Thus, the dismissal of an employee without payment of benefits is possible, but without compensation - in exceptional cases.
Amount of severance pay upon dismissal
The legislator, in Article 178 of the Labor Code of the Russian Federation, provided for the payment of severance pay to employees in a certain amount for certain cases of dismissal. In particular, these include the following:
- Average earnings for 2 weeks:
- in case of refusal of a citizen to be transferred to another job, which is due to him for health reasons or if the employer does not have such a workplace;
- when conscripted for military or alternative civilian service;
- when an employee is reinstated at a job that he performed earlier;
- if the citizen refuses to transfer to another locality, if the employer moves there;
- when the terms of the contract are changed and the employee subsequently refuses to continue working on such conditions;
- when an employee is issued an opinion from a medical organization that he cannot continue his labor activity;
- if a citizen is employed in seasonal work, but the employing organization has been liquidated or there has been a reduction in the number of employees.
- Average monthly earnings are paid in the following cases:
- liquidation of an enterprise;
- staff reduction;
- in case of violation of the procedure for concluding an employment contract by the employer, if such violations do not allow further work to be continued.
For reference! Employees who work in organizations located in the Far North are equated to all other residents of the Russian Federation in terms of severance pay.
- Three months average earnings will be paid in the following cases:
- upon termination of an employment contract with the head of the company, his deputy, chief accountant due to the fact that the owner of the enterprise has changed;
- upon termination of the labor contract with the head of the organization by decision of the authorized body in the absence of any culpable activity on its part.
The severance pay, the payment of which is provided by the legislator (in the amounts established by the Labor Code of the Russian Federation), is not subject to personal income tax and other taxes. However, if a citizen pays alimony, then they are recovered from the amount of the benefit.
An example of the payment of severance pay upon liquidation of an organization.
- On the last working day, a citizen receives 1 average monthly wage. At the same time, the amount of payments does not depend on whether the employee gets a new job.
- At the end of the 2nd month after dismissal, the employee can bring the employer a work book, in which there is no mark of new employment, and receive another average monthly earnings.
- At the end of the 3rd month, the benefit will be paid if two conditions are met simultaneously:
- the citizen, no later than 14 days after he quit, registered with the employment service;
- for 3 months they did not find a job for him.
Severance pay upon dismissal by agreement of the parties
The employee and the employer have the right to sign an agreement that will determine the conditions for terminating the employment relationship. In the document, the head of the company has the right to assign any amount of severance pay to the employee, at his discretion.
Now let's look at this issue in more detail.
To begin with, the agreement that terminates the employment contract is not part of it; that is why, if the text of the agreement or the collective agreement does not specify the severance pay, the amount of which is determined by the employer, then taxes will be charged on this payment.
What to do?
- Prescribe in the text of the labor contract the wording according to which the employer has the right, upon dismissal of the employee, to assign him severance pay in any amount. If the contract has already been concluded, we draw up an additional agreement to it. In this case, the text of the document may contain an indication of a specific amount of the benefit (for example, 50,000 rubles) or its linking to a salary, other payments (for example, in the amount of 5 salaries).
- Indicate the severance pay and its amount in the collective agreement.
Once again, we remind you that the payment should only be called severance pay and nothing else, since various names have been encountered in judicial practice, for example, compensation upon dismissal by agreement of the parties, etc.
If you change your place of work, it is very important that a full settlement of the funds that you were entitled to take place between you and the employer. And that is why, it is very important to know your labor rights in order to prevent their violation. We will talk about this right now.
Features of dismissal and payments
Dismissal is the termination of work under an employment contract. It is made on the grounds that are provided for in Chapter 13 of the Labor Code of the Russian Federation. The day of dismissal is the last day of the employee's work. Regardless of the reason for dismissal, the employer must always make full payments to employees. The procedure and conditions for payment of compensation and severance pay is specified in the Labor Code of the Russian Federation. According to its provisions, upon dismissal, the employee must receive:
· Salary for actually worked hours in the current month;
· Compensation for unused vacation (all days of vacation for different years);
· Severance pay, the amount of which is determined by law.
As a rule, salaries to dismissed persons are paid no later than the day of dismissal (in accordance with article 140 of the Labor Code of the Russian Federation). If the person did not work on the last working day, then the money is paid no later than the day following after the latter submits a demand for final settlement.
Basic payments
So, let's talk in more detail about what payments upon termination are made by the employer. The first is the salary for the hours actually worked during the month the employee quit. It includes all available allowances, bonuses and surcharges.
According to article 127 of the Labor Code of the Russian Federation, an employee upon dismissal is also entitled to monetary compensation accrued for unused vacation. In this case, the employee can submit a written application that unused vacations can be provided to him along with the dismissal. This does not apply to cases of dismissal on the basis of wrongful acts - in this case, the last day of the vacation is considered the day of dismissal. All amounts owed to the employee are paid before he goes on vacation.
If the leave for the current year was provided to the employee as an advance, and the year at the time of dismissal has not fully worked, then the amount of average earnings for the days not worked is subject to withholding. However, retention does not work in the following situations:
· Termination of activity or liquidation;
· Reduction in the number of employees;
· Inadequacy of the employee for the position or duties for health reasons;
· Change of the owner of the company's property;
· Conscription of an employee for military service or assignment to alternative service;
· Reinstatement of an employee in a workplace who previously performed his duties by a court or state labor inspectorate;
· Recognition of the employee as completely incapacitated;
· Death of the employer or employee;
· The onset of extraordinary circumstances that prevent the continuation of labor relations.
With regard to severance pay, upon dismissal, the average monthly wage is paid. Also, for the period of employment, the employee retains the right to receive an average monthly salary, but no more than 2 months from the date of dismissal.
Severance pay is paid regardless of the subsequent employment of employees in the presence of circumstances provided for by the Labor Code of the Russian Federation. As for the average wage, it can be retained for a dismissed employee only if he does not get a new job. So, if you want to be paid the average monthly salary for the period of employment for the second month, you need to confirm that you were not working at that time. To do this, you will need to submit a work book.
This information will help you get all your termination payments.
Upon termination of the employment relationship, an organization or enterprise must perform a payroll calculation upon termination of employment with an employee. In connection with dismissal, employees are paid wages for days worked in the month of dismissal and compensation payments for unused vacation. Depending on the reasons for the dismissal, the employee may also be assigned severance pay or compensation payments due to the termination of the working relationship, as well as retain the average monthly salary.
The basis for formalizing the dismissal of an employee, including the basis for calculating all payments that are due to him under the law, is the Order to terminate the employment contract with the employee. This order is issued in a specific form for maintaining personnel records. It is approved by the State Statistics Committee (forms T-8, T-8a). As a general rule, upon dismissal, the employee is paid:
1. Salary for working days that were actually worked in the month of dismissal, for example, upon dismissal of an employee of his own free will.
2. Compensation payments for unused vacation.
3. Severance pay (in cases established by labor legislation).
- work book;
- upon written application of the employee, copies of documents related to work are issued: copies of orders for admission, dismissal, transfer; certificates of salary, accrued and actually paid insurance premiums, etc.
Example of payroll calculation upon dismissal
Sergei Nikolayevich Fedorov, an employee, resigns on November 19, 2015 in connection with conscription. Calculate the final salary.
First, we calculate the salary for an incomplete month:
Based on the fact that the monthly salary is 25 thousand rubles. , then
November salary = monthly salary / number of work shifts x number of shifts worked
Salary for November = 25,000.00 / 20x13 = 16,250.00 rubles.
At the time of dismissal from Fedorov S.N. two weeks of unused vacation, so he is entitled to compensation for unused vacation.
Vacation compensation (KO) = salary for 12 months / (12 * 29.43) * number of vacation days
KO = 25,000.00 / 29.43х14 = 11,945.39 rubles.
Since Fedorov S.N. is drafted into the army, then according to the Labor Code of the Russian Federation, he is entitled to two weeks of severance pay.
Severance pay (GP) = average daily earnings per year x 10 work shifts
Average daily earnings: salary for the previous 12 months / 12 / 29.3
25,000 / 29.3 = 853.24 rubles.
VP = 853.24 x 10 = 8532.40 rubles.
This severance pay is not subject to personal income tax.
Final calculation = ZP + KO + VP - (ZP + KO) x13%
On the day of dismissal Fedorov S.N. will receive the final payment in the amount of 35,448.85 rubles.
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Upon dismissal of an employee (regardless of the reason for dismissal), the employer is obliged to make the final settlement with this employee, that is, he must pay all the amounts due to the employee (unreceived salary,.).
Calculation after dismissal: timing
Labor legislation sets clear deadlines for the calculation of dismissal. So, the payment of all amounts is made on the day of dismissal (Article 140 of the Labor Code of the Russian Federation).
Recall that, as a general rule, the last day of the employee's work is considered the day of dismissal.
Settlement upon dismissal: payment terms, if the employee was absent on the last day of work
If the employee, for example, was on vacation or was ill, that is, was absent on the last day of work, and the salary in the organization is paid in cash, then the employer must make the calculation upon dismissal no later than the day following the day when the employee applied for the calculation (Article 140 Tax Code of the Russian Federation).
Calculation of an employee upon dismissal: the terms of payment were violated by the employer
An employer who has violated the calculation period upon dismissal of an employee must pay the latter compensation for delayed payments in the amount of at least 1/150 of the Central Bank's key rate that was in effect during the period of delay (Article 236 of the Labor Code of the Russian Federation). Compensation is calculated for each day of delay, starting from the day following the day when the employer was supposed to settle upon dismissal, to the day of actual settlement, inclusive.
What else threatens the employer if he did not make a payment on the day of dismissal
If the employer violated the deadline for issuing the calculation upon dismissal, and the employee complains about it to the labor inspectorate, then the employer faces a fine in the amount of (part 6 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).
