Dismissal based on payment and compensation. What payments are due upon voluntary dismissal?

After the dismissal order has been issued, the question arises: what payments upon dismissal does the law provide for? The Labor Code of the Russian Federation contains rules regarding monetary compensation upon dismissal for vacation that was not used, severance pay and salary for time 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:

1. Writing an application (if required) at will).
2. Issuance of an order.
3. Payment to the employee and issuance work book.

So, what happens when you resign at your own request?

The employee has the right to claim the following payments:

• salary for hours worked;
• compensation for vacation that was not used;
• thirteenth salary (if this is stated in local acts organization).

Compensation for vacation that was not used by the employee must be made according to the following formula:

K-compensation for vacation that was not used by the employee;

M is the average daily salary of the employee;

N is the number of vacation days.

N is defined as follows:

2.33*number of months worked for which vacation was not granted.

For reference! This formula approved by the Ministry of Labor of the Russian Federation and is used, as a rule, to calculate regular calendar holidays of 28 days. If we're talking about about longer holidays, we recommend contacting the labor inspectorate for clarification or dividing total vacation days for the number of months worked. In addition, the month in which less than half of the days were worked is not taken into account.

M is defined as follows:

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 his 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 established by the Central Bank of the Russian Federation on the day of accrual in the event that he did not pay the dismissed employee on time.

Compensation is calculated as follows:

K= C/100%*1/300*S*D, where

K-compensation;

C-refinancing rate;

S-sum owed by the employer to the employee;

D is the number of days of delay.

At the same time, the calculation of payments upon dismissal will not be affected 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 when calculating. Therefore, the above formulas are applicable to the extent that they do not contradict the law and correspond to the remuneration system at the enterprise.

Deadline for settlement with a dismissed employee

Payment of money upon dismissal, in accordance with the provisions of Art. 140 of the Labor Code of the Russian Federation, is carried out on the last day of work of a citizen. 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 applied for payments. If the parties do not reach 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 no longer intends to work at the enterprise, then the payday will be considered the last day before the vacation. The employer is obliged to issue the employee a work book and accrue all payments.

If an employee is on sick leave and decides to quit, then he has the right to write a statement on any day. The employer pays him on the last day of work, even if it falls on sick leave.

Difference between compensation and severance pay

The severance pay will not relate to salary, since its size is in no way related to the quality and duration labor relations. Moreover, the benefit is not a compensation payment. A benefit is a monetary allowance that temporarily replaces wages or serves as a supplement to the basic income, or acts as assistance due to the lack of a source of income. Severance pay is paid only from the employer’s funds and in no case will relate to social benefits which are carried out at the expense of the state. Despite the general legal basis– dismissal, benefits and compensation have different payment circumstances. In particular, if we are talking about compensation, then all employees are entitled to it, 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 staff reduction or at his own request. But in order to get severance pay, it is necessary 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 the liquidation of the company or refusal to transfer to another location.

The second difference between compensation and benefits is that, as a rule, the amount of severance pay is established 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, 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:

1. Average earnings for 2 weeks:

• if a citizen refuses to transfer to another job that is assigned to him due to health reasons or if the employer does not have such a job;
• when conscripted into military or alternative civilian service;
• when reinstating an employee to the job he previously performed;
• if a citizen refuses to be transferred to another area if the employer moves there;
• when the terms of the contract change and the employee subsequently refuses to continue working under such conditions;
• when issuing an employee a conclusion from medical organization that he cannot continue to work;
• if a citizen is busy seasonal work, but the employing organization was liquidated or there was a reduction in staff.

1. Average monthly earnings are paid in the following cases:

• liquidation of the enterprise;
• staff reduction;
• in case of violation of the procedure for concluding an employment contract on the part of the employer, if such violations do not allow further continuation of work.

For reference! Employees who work in organizations located in the Far North are treated the same as all other residents of the Russian Federation in matters of severance pay.

1. Three month old average earnings will be paid in the following cases:

• upon termination of an employment contract with the head of the company, his deputy, or the chief accountant due to the fact that the owner of the enterprise has changed;
• upon termination of an employment contract with the head of the organization by decision of the authorized body in the absence of guilty activities on his part.

Severance pay, the payment of which is provided for 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 it is collected from the amount of the benefit.

An example of severance pay upon liquidation of an organization.

1. On the last working day, a citizen receives 1 average monthly salary. Moreover, the amount of payments does not depend on whether the employee gets a job new job.
2. At the end of the 2nd month after dismissal, the employee can bring the employer a work book that does not contain a note about new employment and receive another average monthly salary.
3. At the end of the 3rd month, the benefit will be paid if two conditions are simultaneously met:

• the citizen, no later than 14 days after he resigned, registered with the employment service;
• They didn't find a job for him in 3 months.

Severance pay upon dismissal by agreement of the parties

The employee and employer have the right to sign an agreement defining the conditions for termination of 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 take a look this question in details.

Let's start with the fact that the agreement that terminates the employment contract is not his integral part; That is why, if the text of the contract or the collective labor agreement does not indicate severance pay, the amount of which is determined by the employer, then taxes will be charged on this payment.

What to do?

1. Include in the text of the employment contract the wording according to which the employer has the right, when dismissing an 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 indicate a specific amount of benefits (for example, 50,000 rubles) or its link to salary or other payments (for example, in the amount of 5 salaries).
2. Indicate the severance pay and its amount in the collective labor agreement.

We remind you once again that the payment should be called only severance pay and nothing else, since in judicial practice There were various names, for example, compensation upon dismissal by agreement of the parties, etc.

Dismissal is always the termination of the employment contract and the relationship between the employee and the employer. Upon dismissal, the employee is entitled to cash payments.

Full payment must be made within one day. The day of transfer of documents and cash payments is the last working day. It does not matter on what basis the dismissal is carried out.

Reasons for receiving payments

The main reason for receiving cash payments is the fact of dismissal. Grounds for dismissal are not grounds for payment of compensation. The employer acts as a guarantor to the employee regarding his material well-being.

All mandatory payments that he transfers to extra-budgetary funds are social guarantees for every worker in case of loss of monthly earnings.

Payments are also provided to compensate for missed vacations and total hours worked.

The main reason may be the mandatory financial settlement between the parties to the employment agreement upon its termination.

The employer can only consider its obligations fulfilled when the employee has received the money and there is no debt to extra-budgetary funds.

Unscrupulous employers risk being brought to financial, civil, disciplinary and even criminal liability for incorrect calculations.

Types of compensation The Labor Code of the Russian Federation establishes the following types

• monetary compensation upon dismissal of an employee:
• payments upon dismissal due to staff reduction;
• payments if there was dismissal by agreement of the parties compensation;
• voluntary care payments;

compensation for dismissal due to health reasons.

The employer must financially compensate for unused vacation pay and

Reimbursement for actual time worked is not RP.

The calculation takes into account the hours, as well as the form of payment and the tariff rate. Allowances and bonuses are also added. The salary is transferred no later than the day of termination of the employment agreement (Article 140 of the Labor Code of the Russian Federation).

In the absence of settlement before this moment, at any time and upon the first demand of the employee, he will have to receive everything that the employer owes him.

For early termination of an employment contract It is permissible to terminate such an agreement with an employee before the expiration 2 months

from the date of the warning notice.

• To do this you need:
• further, vacation compensation is provided, as well as VP;
• compensation is paid for early termination of contractual relations.

Additional compensation is accrued for the time remaining until the end of the notice period. Thus, in case of early termination of an employment agreement, the employee is obliged to receive compensation for unused vouchers, VP and additional compensation wages for the period that he agrees to shorten upon termination.

Affects the procedure for calculating compensation and the method of early termination of an employment agreement. For example, when a person leaves of his own free will or by agreement of the parties, the VP is usually not paid. The exception is those cases where the employer has somehow violated labor laws.

If an employee loses his monthly income due to staff reduction, then severance pay is mandatory.

The employee is not to blame for such a dismissal, and the state is obliged to provide money for the period while he looks for a new job. There are also cases when an employer induces an employee to leave at his own request when staffing is reduced.

When staffing is reduced, in any case, the employer cannot require employees to write an initiative statement regarding their resignation. . This profitable solution problems regarding the payment of VP, but only for one side. The employer can only advise or offer a similar option. And the employee retains the right to refuse.

Moreover, dismissal during staff reduction with the employee’s initiative is illegal. Two conditions for termination of an employment contract cannot exist simultaneously. The employee must choose: to leave of his own free will and lose severance pay, or to be laid off, while retaining the right to monetary compensation and indicating a more “favorable item” in the work book.

Often, when employers want to avoid paying back wages, but they have no reason to fire them, the employee is monitored.

Each offense is recorded and then the employer tries to force him to leave “at his own request.” This is especially true for a part-time worker, but other employees in such a situation also need to exclude tardiness and any, even minor, violations of labor discipline. It will be virtually impossible to prove in court the guilt and intentionality of the employer’s actions.

Compensation for unrealized vacation is paid to all categories of dismissed persons, regardless of the reasons for termination labor activity. Such monetary compensation is given for all unused rest periods by the employee.

According to the law, in very rare cases it is allowed to work without vacation for more than 2 years.

Most often, the employee himself takes the initiative and refuses the next vacation. If the employee has not been on vacation for more than 2 years in a row, the employer will have to justify this upon dismissal. The exception is cases involving guilty actions of the employee.

If the reason for dismissal was a serious violation of labor discipline, the employee will not receive compensation for lost vacations.

The date of departure in this case will be the last day of vacation. According to the general rule, the employer, before the day of immediate dismissal, must transfer to the person compensation for all unused vacations. Compensation is calculated only for fully worked months.

When staffing is reduced Reduction of staff involves termination of a contract without the will of the parties. In this case, the state guarantees monetary protection to the working people. Off-budget funds compulsory insurance , in turn, are engaged in the implementation social programs

aimed at providing for persons who, through no fault of their own, are left without a job.

When staffing is reduced, the employee must be paid severance pay, salary for the period actually worked and compensation for unused vacations (if any).

Cases where the employer’s guilt entails a reduction in the workforce are not exceptional.

VP is very different from regular salary compensation.

• It is paid in any case when:
• liquidation of the organization;

The number of employees is being reduced (Article 81 of the Labor Code of the Russian Federation). The average salary does not always remain with the employee.

He retains his monthly salary if the contract with the new employer has not yet been concluded. At the time of payment of the salary, he must confirm that all this time he was not a participant in labor relations. In exceptional cases, average earnings can be maintained for 3 months instead of the standard two, by decision of the employment center. The employment center will consider him, and if he is not hired, he will retain his average salary for three months after dismissal. To receive a salary, you will need to provide the employer with your main document confirming your work activity and an extract from the central salary.

Calculation

When calculating, the features of the applied remuneration system at the enterprise are taken into account, bonuses and allowances are added. Usually they calculate how many hours per day and days were actually worked.

The calculation of additional compensation in case of early termination of an employment agreement is made taking into account the time remaining until the end of the period allotted for notice.

An employee may receive disability benefits during vacation, but the pay period is not extended by the number of sick days. Unused vacation pay is calculated based on the time actually worked in the year. Thus, the calendar year is completely ignored.

A similar scheme is used when calculating the size of the VP. Compensation will be proportional to the days allocated for vacation during the months worked. If less than half of it was worked in a month, then such a period is not taken into account when establishing the amount of compensation for unused vacation. When working more than half of the days in a month, this period is counted as a whole period.

Formulas and examples

There are 2 main formulas that are used when calculating severance pay and payment of average monthly wages:

ZP (SDN) = ZP (F): RD (F);

ZP (SR) = ZP (SDN) * RD: 2.

The average daily salary (ADS) is calculated based on the days actually worked in the month and the amount of the salary for the last 2 months worked. The average monthly salary will depend on the average daily wage, as well as on the number of working days for the last two months.

Example No. 1. An employee of the enterprise quits on July 20, 2019 due to a change in significant working conditions. Severance pay was calculated in a one-time amount. Reporting period– this is May – June 2019. During this time, the employee received a salary in the amount of 10,000 rubles. About 4,000 rubles of sick leave were also accrued, but they are not taken into account when calculating severance pay.

1)Installing SDN ZP: 10,000: 33 = 303 rubles (33 is the number of days worked in May - June 2019);

2)Average monthly number of working days – 20 . Based on this, the average monthly salary will be equal to: 303 * 20 = 6060 rubles.

Since the benefit must be paid in a one-time amount, its size will be equal to 6,060 rubles.

Compensation for unused vacations is calculated using the formula:

K = D (COMP)*ZP (SR),

where ZP (SR) is the average daily salary, and D is the unused vacation period. The latter indicator depends on the total duration of vacation, the total number of calendar and holiday days.

2) Amount of vacation pay: 28*168.9=4729 rubles.

Vacation pay for the 7 months not worked must be withheld.

1) Billing period: 28:12*7=16.33 days;

2) Amount to be withheld: 16.33*168.91=2758 rubles.

Salary upon dismissal is calculated depending on the days worked in the month and the average daily salary.

Taxation

Not subject to taxation Personal income tax persons who are provided to them as employees upon dismissal or liquidation of the enterprise.

But we must not forget about the additional conditions for taxation of amounts that may be provided for under a collective or individual employment contract.

The unified social tax is not imposed on dismissal of an employee, including compensation for unused vacation pay.

Taxation of VP depends on its size. If the employer is obliged to pay severance pay, then he does not pay income tax. When the amount of unpaid benefits is included in the amount of income of the enterprise, the employer pays the non-paid benefit.

Liability for non-payment There are two ways to achieve payment of the required compensation amounts: contact law enforcement agencies

or court. In the first case, a case will be opened against the employer and if the evidence during the judicial and pre-trial investigation turns out to be significant, then he will be held criminally liable for failure to pay social payments obligatory for the employee. When going to court with statement of claim

the employee can recover accrued but unpaid amounts of salary, bonuses and compensation for the entire past period.

In this case, the employer's liability may be civil or disciplinary in nature.

Upon dismissal, the employer is obliged to pay salary, severance pay and compensation for unused vacation before the day of actual dismissal. The chosen method of ending cooperation with the employer can shorten or supplement this list. Only those employees who have committed significant disciplinary offenses can be deprived of full payments. Upon termination of the employment relationship, the organization or enterprise must calculate the salary upon dismissal with the employee. In connection with dismissal, employees are accrued for days worked in the month of dismissal and compensation payments for unused vacation. Depending on the reasons for dismissal, the employee may also be given 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 by law, is the Order to terminate the employment contract with the employee. This order is issued in a certain form maintaining personnel documentation. It was approved by the State Statistics Committee (forms T-8, T-8a). By general rule, upon dismissal, the employee is paid:

1. Salary for working days that were actually worked in the month of dismissal, for example, when an employee quits 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, relocation; certificates of salary, accrued and actually paid insurance premiums, etc.

Example of salary calculation upon dismissal

Employee Sergey Nikolaevich Fedorov resigns on November 19, 2015 due to being called up for military service. Calculate final salary.

First, let’s calculate wages for less than a full month:

Based on the fact that the monthly salary is 25 thousand rubles. , That

Salary for November = monthly salary / number of working shifts x number of shifts worked

Salary for November = 25,000.00/20x13 = 16,250.00 rub.

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 = 25000.00/29.43x14 = 11945.39 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 (VP) = average daily earnings for the year x 10 work shifts
Average daily earnings: salary for the previous 12 months / 12 / 29.3
25000/29.3 = 853.24 rubles.

VP = 853.24 x 10 = 8532.40 rub.

This severance pay is not subject to personal income tax.

Final payment = ZP + KO + VP – (ZP + KO)x13%

On the day of dismissal Fedorov S.N. will receive a final settlement of RUB 35,448.85.

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Dismissal at will is most often the reason for the termination of the employment relationship. The employer’s opinion is not taken into account in any way, because he cannot force the employee to work. Even submitting an annual report or other important responsibilities cannot prevent such dismissal.

Therefore, the employer is obliged to dismiss the employee, while observing the dismissal procedure. And he, in turn, must notify him 2 weeks in advance, indicating the date of dismissal. Labor legislation also provides for dismissal without service. In this case, the application must indicate the reason. The reasons may be a change of residence, study, military service or retirement.

Registration of dismissal

If the employee changes his mind about quitting and within 2 weeks withdraws your application, then employment contract doesn't break up with him. Termination can only occur if another person has already been officially (in writing) invited to take his place. It happens that an employee does not withdraw his application, but his employer does not particularly insist on dismissal. Then the employment agreement between them is not interrupted, and the application itself no longer has legal force. During his work, the employee must comply with all the rules of labor discipline, otherwise the employer has every right to dismiss him early.

On the day of dismissal, the employee is required to pick up all his documents and receive a payment. In a situation where he is on vacation at this time, he must still come to work for the final payment and his work book.

If an employer withholds the work book of an already dismissed person, then he violates labor legislation. In this case, you can request compensation for the inconvenience caused. It is interesting that if the timely issuance of a work book does not occur, the employee continues to be on the staff of the organization. Therefore, many lawyers recommend not only seeking compensation for losses (after all, without this document it is impossible to get another job), but also demanding new entry in labor.

Unfortunately, many unscrupulous employers force their employees to resign of their own free will, although in fact the initiative to resign belongs to them. This is done in order to reduce the amount of all payments due to the employee, for example, upon liquidation of the enterprise. Such dismissal can be challenged in court or contacted by the labor inspectorate.

Dismissal by the employer is legal:

• for absenteeism or working under the influence of alcohol or drugs;
• in case of violation labor responsibilities;
• for forgery, theft or distribution of trade secrets;
• in case of inconsistency with the position;
• upon liquidation of an organization or in case of staff reduction.

Dismissal during the probationary period

When an employee resigns while on duty, he is required to notify his employer in writing. no later than 3 days. These days are considered working days. In addition, the law provides for dismissal without service. To do this, you must have a good reason (moving, illness, etc.) or the consent of the employer.

As for payments, he has the right to all the same compensation as other employees. Salary and salary must be taken into account vacation days, if they rely on him.

What should an employee be paid?

In the event of termination of an employment agreement, each employer is obliged to make all necessary calculations wages with your employee. In this case, only the salary for the days worked in the month is taken into account.

Article 127 of the Labor Code of the Russian Federation provides that an employee has the right to. By agreement of the parties, he can go on vacation before his dismissal or receive payment in cash equivalent. If for some reason he did not take a vacation during the last few years before his dismissal from the enterprise, then he is entitled to compensation for only one vacation.

To receive payment in full size, the total number of remaining vacation days must exceed 56 days.

The employee also has the right to payment sick leave benefit , if you fall ill no later than the date of your dismissal. It is paid in full.

In addition, labor legislation provides for cases where an employee has the right to 2 weeks’ earnings. The reasons for this are:

• dismissal due to employer relocation;
• inability to perform job responsibilities due to your health condition;
• conscription into the army;
• reinstatement of the previous employee to this position.

You can learn more about all types of payments from the following video:

Payout calculations with examples

Any employee who is voluntarily dismissed is entitled to benefits Money for your unused vacation.

Compensation takes into account:

• vacation experience;
• total number of vacation days;
• days used.

An employee of any organization has the right to paid leave in the amount of 28 calendar days during a year. If for Last year he did not take vacation from his work at the enterprise, then payment must be made in full.

For example, A. A. Fedorov worked for 11 months and then quit of his own free will. In order to calculate the entire compensation for vacation, his average salary for the year (40 thousand rubles) must be divided by the average number of calendar days in one month. Since 2014, this number is 29.3:

• 40,000/29.3=1365 rubles

This is the approximate amount that A. A. Fedorov earned per day. Considering that he has accumulated 28 days unused vacation, then you need:

• 1360*28=38,220 rubles

This will be the amount of payments due to the employee. Such calculations are made depending on the number of vacation days.

He also has a legal right to receive his wages. In order to make these payments, the employer is obliged to calculate them correctly. The type of salary is taken into account here. It can be paid in the form of a salary, as a percentage or be piecework. In addition, the employer takes into account all kinds of additional payments, taxes, etc.

For example, I. O. Svetlova resigns from her position on November 18. Let's assume that her monthly earnings were 30 thousand rubles. In November, she worked only 12 days out of 21:

• 30,000/21=1428 rubles

This is her salary for the day. For 12 days worked in November, I. O. Svetlova will receive:

• 1428*12=17,136 rubles

Payment terms

Article 140 of the Labor Code of the Russian Federation clearly regulates the timing and procedure for all payments to an employee upon dismissal. All payments must be made on the day of dismissal. In extreme cases, for example, if the employee is not at work that day, all payments occur no later than the next day.

If the employee and employer cannot come to unanimous opinion regarding the amount of payments, this dispute can be resolved with the help of judicial trial. For the issuance of all funds later than the deadlines established by law, the employee is entitled to interest, which is calculated on the total amount for each day. In addition, the employer may incur administrative penalties in the form of a fine.