Is there a payout upon dismissal? Are there deadlines that the employer needs to meet when solving the task? These questions are of interest to everyone who plans to leave their job position. After all, monetary disputes arise between employers and their subordinates quite often. Therefore, you should pay attention to the calculation at the time of dismissal. Maybe the employer does not owe anything to the employees? In Russia, the procedure for assigning a calculation is established by the Labor Code. What does it say? What features should every employee be aware of before leaving?
Should I pay
Is there a severance pay? Are there legal deadlines for this process? Should employers pay their employees at all?
At the moment, laws are in force in Russia, according to which each boss is obliged to make settlements with his employees. He pays for every day worked by employees. And this is a must. Otherwise, you can call the dismissal process violated. Accordingly, subordinates have the right to complain about the actions of employers.
Art. 140 of the Labor Code of the Russian Federation provides for certain deadlines that the employer must meet. If the boss does not take care of this, he faces a fine of one size or another.
What do they pay for
What is the payout for dismissal? Timing this action- this is a completely different question. First, each employee must familiarize himself with what he is entitled to money for. After all, not everyone knows this issue. Some citizens do not know at all that the employer is obliged to pay during the termination labor relations!
At the moment, you can request (or recover) funds from the employer for several periods. Among them are:
- worked on official days off;
- all days worked until acceptance;
- behind unused vacation.
Accordingly, for all of the above periods, you can recover money. And every employee can claim them. Usually, employers independently make settlements with subordinates. The main thing is to check the correctness of the charges.
Upon dismissal
When is the payout due upon dismissal? The terms of this action are set at the legislative level. The point is that it is enough to read the Labor Code to find the answer.
Now in Russia, every employer is obliged on the day of dismissal to make a settlement with his subordinate. It is precisely when there is a direct removal of an employee from performing official duties. Not earlier, not later.
Accordingly, by the time of dismissal, the employer must draw up all the documents necessary for the calculation. And together with the work book, the subordinate receives the money due to him. Delay in payment is punishable by a fine. And refunding the full amount to the employee with whom the settlement was to take place.
With absence
Sometimes it happens that the employee is not at the workplace at the time of termination of the employment relationship. And then, as you might guess, the employer cannot make the calculation according to all the rules. Art. 140 of the Labor Code of the Russian Federation provides for a certain algorithm of behavior in this situation.
The point is that the payment still has to be made. But in this situation, it will have to be carried out directly at the request of the dismissed employee. He writes a statement standard pattern for the calculation. Next comes the payoff. It is possible no later than one day from the date of the relevant request.
In other words, if the employee did not work on the day of dismissal, he must apply for a calculation, but this must be done by writing a statement. Funds can be received either on the same day or the next day. And no more.
On holiday
What else should an employer pay attention to? When is the payout due upon dismissal? Deadlines may vary. It has already been said that a lot depends on the situation.
Sometimes an employee is fired (or he himself writes in advance while on vacation. In this situation, the calculation is not made immediately. In fact, at the time of dismissal, the citizen will not be at the workplace. Then you will have to wait for the subordinate to leave the vacation. And at this moment, make the calculation.
Usually the workers themselves come for in cash. But if this did not happen, you will have to wait until the employee writes the appropriate application for payment.
controversy
It is far from always that the employer and the subordinate all issues are resolved without any problems. It happens that there are some disputes about what the calculation is due upon dismissal. The terms of payment (the Labor Code of the Russian Federation establishes a clear framework in this regard) of funds - a day. This means that either at the time of the appeal, the employer must pay off the employee, or the next day after writing the application for payment of the calculation. What if there are disputes?
Everything is very simple. The amount, which is not in dispute, is paid on the day of dismissal. That is, the one with which the boss agrees. But the balance must be paid at the time of settlement of the dispute, after the employer will make an accurate check of the data and establish how much money is actually due to the dismissed subordinate.
In case of delay
Labor legislation in Russia indicates that a delay in payment of the calculation upon dismissal is possible. But only in this situation, the employer is obliged to cover the entire delay with additional payments. How much will you have to pay?
The exact amount cannot be named. The point is that it depends on many factors. For example, from the total amount of debt. And the duration of the delay. But at the legislative level, certain conditions for the calculation are established.
The penalty for late payment of the calculation upon dismissal is 1/300 of the refinancing rate of the Central Bank. That is how much of the entire amount of the debt will have to be paid for the day of delay. The countdown will begin the next day after the non-payment of funds. And it will end on the day of receipt of the calculation.
This rule applies always and in all cases. In other words, it doesn't matter if the employer was at fault for the delays or not. You will still have to pay for the delay in accordance with the Russian Federation rules.
Serious penalties for delay
In Russia, the employer may be subject to more serious liability for non-payment of the calculation to employees. The thing is that the boss must pay the due funds with all interest to the subordinate no later than 3 months. It is this period that is given for payment without additional large fines (only with a penalty, which is 1/300 of the refinancing rate for each overdue day).
But article 145.1 of the Criminal Code of the Russian Federation states that if the employer has not paid the full amount of money to his subordinates for more than 3 months, he will face serious responsibility. The first scenario is the appointment of a fine. Its size is up to 120,000 rubles. Also, the penalty payment can be calculated based on the annual income of the violator. Or there is a risk of losing your freedom for 12 months.
Vacation and dismissal
The next question that interests many is the calculation of payments for unused vacation upon dismissal. For him, too, as already mentioned, they must pay. This process involves many nuances. And everyone should pay attention to them.
The first rule is if the employee did not go on vacation at all for Last year, then the funds are credited for all 28 days of paid legal rest. Plus, here are added the days worked by agreement with the employer, which are holidays (in order to receive an additional day off on demand). If the vacation was used to one degree or another, then the calculation will be made in direct proportion to the hours worked.
How to calculate compensation for unused vacation? First, you need to find out the average salary of an employee per day. And then correctly calculate how many days of vacation you need to pay. If an employee has worked in the company for at least a year, but has not gone on vacation, as already mentioned, it is necessary to pay all 28 days. Otherwise, you will have to calculate according to the following system (it is better to consider it with an example).
The subordinate has 28 days of paid legal rest. How to calculate compensation for unused vacation? Suppose that a person quits on his own, having worked 8 months from the date of employment. IN this case days for which compensation is due will be equal to: 28 * 8 / 12 \u003d 18.67 days. Next, the resulting figure is multiplied by the average salary of the employee per day. And these funds should be paid upon dismissal of a subordinate.
By the way, Russia does not provide for the absence of paid leave. Employees cannot work without it for more than 2 years. If the subordinate intends to do this, it is necessary to forcefully send him to a well-deserved rest. And if a person leaves after 24 months of work, then he will receive a calculation for 56 days of paid leave. In fact, understanding how many days to pay is not as difficult as it seems.
The rules for calculating the days that the employer will have to pay can be divided into several steps. The first one is division total number vacation days by 12. The second is to multiply the amount received by the number of months worked in a year.
Settlement requirement
It has already been said that it is far from always possible to make settlements with subordinates on the day the employment relationship is terminated. Then you will have to ask the employee for a requirement to pay the calculation upon dismissal. A sample of this document cannot be called a template. After all, it is usually written in free form. The requirement might look like this:
I, Ivanov Ivan Ivanovich, an employee of Miralinks LLC, who has been working as a senior manager since 2012, ask the employer, Petr Petrovich Sidorov, to pay me due to my dismissal. It took place on March 5, 2016.
At the very end, the date and signature are affixed. Nothing else is required. An employee can describe the reason for his absence from the workplace on the day of dismissal. And no more. After writing this document and submitting a request to the employer, the latter will have to issue everything that is necessary for the calculation.
We take money
Now it is clear what deadlines the boss must meet when dismissing his employees. The dismissal process can be reduced to the fact that after acceptance, an order is made. On the day it comes into force, the employee comes to the employer, he gives him a special pay slip, as well as work book. With a leaflet, you need to go to the accounting department and get cash.
This is the payment of the calculation upon dismissal. The terms of this action are short - on demand on the day of dismissal. Or the next day after writing the application for the payment of funds. As soon as the work book and the calculation are received, the employee puts his signature in special accounting journals. And that's it, the process of dismissal is over.
For example, 5.28 / 12 * 5 = 2.33 * 5 = 11.65 - unused vacation days
- The resulting value is multiplied by the size of the average wages employee in one day. For example, it is one thousand rubles.
11.65 * 1000 = 11,650 rubles.
- Income tax is withheld from compensation individuals and the amount received is given to the citizen as compensation.
11,650 * 0.87 (personal income tax - 13%) = 10,135.50 rubles. Termination of TD, calculation rules In the event that on the day the employee was dismissed he was not paid the due remuneration, the employer will have to compensate for this. The penalty is 1/300 of the refinancing rate set by the Central Bank of Russia.
Types of payments Regardless of the reasons for termination employment contract required to make a final calculation. Mandatory payments include:
- employee's salary;
- compensation for vacation that was not used;
- severance pay upon termination of the relationship between the parties to the agreement under paragraph
2 hours 1 tbsp. 81
Additional types of financial support include: retirement benefits by agreement of the two parties, as well as other types of material compensation established by the collective agreement. The procedure for issuing and withholding It is clear that all funds due must be paid to the employee.
At the same time, some of them can sometimes be withheld.
Article 127 of the Labor Code of the Russian Federation. exercising the right to leave upon dismissal of an employee
Commentary on Article 127 of the Labor Code of the Russian Federation According to Article 127 of the Labor Code of the Russian Federation, upon dismissal, an employee is paid monetary compensation for all unused vacations. Part two of the commented article also allows you to provide the dismissed (leaving) employee with leave with subsequent dismissal.
Info
Another commentary on Art. 127 of the Labor Code of the Russian Federation 1. Upon dismissal of an employee, regardless of the reason for dismissal, he is paid monetary compensation for all unused vacations; when an employee enters a new place of work, the length of service for obtaining the right to annual paid leave begins to flow from the beginning.
2. The amount of monetary compensation for unused vacation depends on the duration of the vacation to which the employee is entitled at the time of dismissal.
Calculation upon dismissal according to the Labor Code of the Russian Federation
- prosecutor's office;
- Labour Inspectorate.
Important
What threatens the employer If the deadlines for the final payment upon dismissal are not met, the employer will be fined:
- compensation for each day of delay paid to the citizen;
- from 30 to 50 thousand rubles - for companies;
- from 10 to 20 thousand rubles - for persons responsible for the timely implementation of settlements with dismissed employees;
- from 1 to 5 thousand rubles - for individual entrepreneurs.
Thus, the final settlement includes several payments and compensations that must be issued to the dismissed citizen directly on the day the employment relationship is terminated. Otherwise, the employer faces liability in the form of a large fine.
Final settlement upon dismissal of an employee
Attention
The employee's salary for the billing period was:
- January - 1960 rubles;
- February - 6000 rubles;
- March - 6000 rubles.
The average daily earnings for compensation will be:
- 13960 rubles: (29.6 x 2 + 9.8) = 202 rubles. 32 kop.
According to paragraph 35 of the Rules on regular and additional holidays, approved NKT USSR April 30, 1930, and Art. 123 of the Labor Code, when determining the number of vacation days for which it is necessary to pay compensation to the employee upon dismissal, it must be taken into account that if the employee has worked less than half a month, then the specified time is excluded from the calculation, and if half or more than half a month has been worked, then the specified period is rounded up to the full month.
Thus, the total number of months for which the employee is compensated will be 3 in this case.
Article 140. Terms of payment upon dismissal
Compensation for unused vacation upon dismissal is determined by multiplying the employee's average daily earnings for the billing period by the number of vacation days not used during the time of work in the organization, based on the calculation of 2.33 days of vacation for 1 month. Thus, the amount of compensation for unused vacation will be:
- 2.33 x 3 x 202 rub.
32 kop. = 1414 rubles. 22 kop.
6. In the Ruling of the Constitutional Court of the Russian Federation of January 25, 2007 N 131-0-0 “On the refusal to accept for consideration the complaint of citizen Grudinina Irina Nikolaevna about the violation of her constitutional rights by part four of Article 127 of the Labor Code of the Russian Federation”, the following legal position is given.
According to Art. 37 (part 1) of the Constitution of the Russian Federation, labor is free; Everyone has the right to freely dispose of their abilities to work, to choose the type of activity and profession.
Payroll settlements with dismissed employees
The exception is the liquidation of the company and the reduction in the number of employees. If the dismissal occurred for one of these reasons, then the severance pay will be average salary citizen for a month of work. Moreover, it will be paid again if a month after the dismissal, the citizen was not employed again. Calculation It is worth disassembling the final calculation process with an example.
The conditional worker wrote a letter of resignation on April 20, and his average salary is 30 thousand rubles. Respectively:
- The employee must be paid wages from 1 to 19 April. The number of working days in April is 22. Therefore:
30,000 / 22 * 18 * 0.87 (personal income tax) = 21,354.54 rubles - wages for 18 days.
- In this case, the calculation of compensation for vacation is carried out for 4 months of work.
Article 127. Realization of the right to leave upon dismissal of an employee
- certificate of total income - used to calculate benefits;
- work book with a record of the termination of employment relations;
In addition, according to the relevant application of the employee, he will also have to issue:
- a copy of the order on hiring and dismissal;
- certificate of salary received for a certain period of time;
- certificate of contributions made to Pension Fund insurance.
Mandatory payments and compensation The final settlement implies the accrual and payment of:
- salary for the last month of work;
- compensation for unused annual paid leave;
- severance pay - the grounds for calculating this payment are prescribed in the second paragraph of the first part of article 81 of the Labor Code of the Russian Federation.
Withholding and Disbursement Procedures Some payments may have a certain amount of money withheld.
Then the resulting number (2.33) is multiplied by the number of months worked in the working period, for example 4.
- Multiplying 2.33 by 4 results in 9.32 unused vacation days. Then this number is multiplied by daily earnings, for example, 900 rubles.
It turns out 8388 rubles. This is the money that is due to a person as compensation for unused vacation. From the same amount, personal income tax will be withheld - 13%. The final settlement with the employee should not be delayed by the boss.
It must be done on time, regardless of for which of the grounds specified in the Labor Code, a citizen is dismissed. Rules for calculating upon termination of an employment contract All payments due to an employee must be received by the latter on the last day of his labor activity at this enterprise.
Guilty actions of an employee can also include such actions of an employee, even if not at the place of work and not in connection with the performance of labor duties, as the commission of guilty actions by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him by the employer, and the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (see paragraphs 7 and 8 of part 1 of article 81 of the Labor Code of the Russian Federation and commentary thereto). 7. By general rule employee who has filed for resignation own will, has the right to withdraw his application at any time before the expiration of the notice of dismissal, which is two weeks (unless another employee is invited to his place, who cannot be refused to conclude an employment contract) (see Part 4 of Art.
The calculation takes place in the following order: Ivanov worked this year for 3 months and 18 days. But the count will go for 4 full. Rounding to tenths and hundredths is not done, so the amount is calculated from 28 vacation days / 12 months a year = 2.33 days. After that 2.33*4 (worked months)=9.32 days. And only then 9.32 * 909.9 (daily earnings) \u003d 8480.26 (compensation for vacation). Thus, the final payment is made from all the amounts due to the employee. But in this case, this is only a salary and a cash payment for vacation, because Ivanov is leaving for own initiative. If he had been reduced or dismissed in connection with the liquidation, he would also have received a severance pay, which is also paid with all the money (based on Article 140 of the Labor Code of the Russian Federation).
Final settlement upon dismissal under Article 127 of the Labor Code of the Russian Federation
Monetary compensation for vacation upon dismissal of an employee must be paid for all vacation days unused by him by the day of dismissal, regardless of what their total duration and on what grounds an employment contract is terminated (Article 127 of the Labor Code). 2. When calculating monetary compensation for unused vacation, the same rules apply as when calculating wages for vacation (Article 139 of the Labor Code). 3. All amounts due to the employee from the employer, including compensation for unused vacation, are paid to the employee on the day of dismissal. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a settlement request (Article 140 of the Labor Code). 4.
Termination for one reason or another of an employment contract with an employee of a state (municipal) institution occurs quite often. According to Art. 84.1 of the Labor Code of the Russian Federation on the day the employment contract is terminated, the employer is obliged to issue a work book to the employee and make settlements with him in accordance with Art. 140 of the Labor Code of the Russian Federation. It says that upon dismissal for any of the reasons, all amounts due to the employee must be paid to him on the day the employment relationship is terminated. In the article, we will consider the payments that are due to an employee upon dismissal, as well as the features of their calculation.
There are more than enough reasons for terminating an employment contract. All of them are established by labor legislation.
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Grounds for dismissal |
Legislation |
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At the initiative of the employer |
Articles 71, 81 of the Labor Code of the Russian Federation |
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By agreement of the parties |
Article 78 of the Labor Code of the Russian Federation |
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After the expiration of the employment contract, except in cases where the employment relationship actually continues and neither party has demanded its termination |
Article 79 of the Labor Code of the Russian Federation |
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At the initiative of the employee (at his own request) |
Article 80 of the Labor Code of the Russian Federation |
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Due to circumstances beyond the control of the parties |
Article 83 of the Labor Code of the Russian Federation |
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In connection with the transfer to work with another employer |
Clause 5, Part 1, Art. 77 Labor Code of the Russian Federation |
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In connection with the refusal of the employee to continue working due to the reorganization of the organization |
Clause 6, Part 1, Art. 77 Labor Code of the Russian Federation |
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In connection with the refusal of the employee to continue work due to a change in the terms of the employment contract determined by the parties |
Clause 7, Part 1, Art. 77 Labor Code of the Russian Federation |
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In connection with the refusal of the employee to transfer to another job, which is necessary for him in accordance with the medical report, or the lack of an appropriate job for the employer |
Clause 8, Part 1, Art. 77 Labor Code of the Russian Federation |
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In connection with the refusal of the employee to transfer to work in another area together with the employer |
Clause 9, Part 1, Art. 77 Labor Code of the Russian Federation |
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In connection with the violation of the established rules for concluding an employment contract, excluding the possibility of continuing work |
Clause 11, Part 1, Art. 77 Labor Code of the Russian Federation |
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In connection with the termination of the employment contract on remote work |
Article 312.5 of the Labor Code of the Russian Federation |
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In connection with the adoption by the authorized body legal entity, or by the owner of the property of the organization, or by the person (body) authorized by the owner of the decision to terminate the employment contract |
Paragraph 2 of Art. 278 of the Labor Code of the Russian Federation |
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In connection with the termination of the employment contract with the head of the organization on other grounds provided for by the employment contract |
Paragraph 3 of Art. 278 of the Labor Code of the Russian Federation |
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In connection with the termination of the employment contract with a person working part-time |
Article 288 of the Labor Code of the Russian Federation |
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In connection with the termination of the employment contract with a teacher |
Article 336 of the Labor Code of the Russian Federation |
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As already mentioned, compensation for unused vacation, as well as wages for the month of dismissal, is paid regardless of the basis for terminating the employment contract.
For your information. At the written request of the employee, unused vacations may be granted to him with subsequent dismissal (with the exception of cases of dismissal for guilty actions). In this case, the last day of vacation is considered the day of dismissal (Article 127 of the Labor Code of the Russian Federation).
Despite the fact that the Rules on regular and additional holidays, approved by the USSR Tax Code of April 30, 1930 N 169 (hereinafter referred to as Rules N 169), were established a very long time ago, they are still being applied. Employees of Rostrud have repeatedly reminded of this in their explanations. One such example is Letter No. 15-19-6-1 of December 18, 2012.
As a general rule, compensation for unused vacation is calculated in proportion to the time worked by the employee. When calculating hours worked, remember that:
surpluses that make up less than half a month are excluded from the calculation, and surpluses that make up half a month or more are rounded up to a full month (clause 35 of Rules No. 169). This means that if an employee worked, for example, 11 days in a month, this month is not taken into account, and if more than half, then the month is considered as full;
when calculating the days of unused vacation, it is not the calendar month that is taken into account, but the actually worked (working) month from the date of employment (Article 14 of the Labor Code of the Russian Federation). However, rounding off calendar days up to whole days it is necessary to produce not according to the rules of arithmetic, but in favor of the worker. Therefore, if the institution decides to round the number of calendar days payable when calculating compensation for unused vacation, when paying compensation to an employee for unused vacation of 20.4 calendar days, it will be rounded up to 21 calendar days, and not to 20 calendar days. Such clarifications are provided in the Letter of the Ministry of Health and Social Development of the Russian Federation of December 7, 2005 N 4334-17 "On the procedure for determining the number of calendar days of unused vacation."
Note. Rules N 169 are applied in the part that does not contradict the Labor Code (Article 423 of the Labor Code of the Russian Federation).
To whom is compensation for unused vacation calculated differently?
The legislation establishes cases when the number of calendar days for unused vacation is calculated not in proportion to the hours worked:
employees who are dismissed for any reason and who have worked for this employer for at least 11 months, subject to offset in the length of service giving the right to leave, receive full compensation. Note that this rule applies only if the person has worked in the organization for less than a year. Compensation for the second year is paid in proportion to the time worked by the employee (letters of Rostrud dated 03/04/2013 N 164-6-1, dated 08/09/2011 N 2368-6-1);
employees who have worked in the organization from 5.5 to 11 months also receive full compensation if they leave due to:
a) liquidation of an enterprise or institution or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work;
b) admission to active military service;
c) business trips in due course to universities, technical schools, workers' faculties, preparatory departments at universities and training courses for universities and workers' faculties;
d) transfer to another job at the suggestion of the labor authorities or the commissions attached to them, as well as party, Komsomol and professional organizations;
e) found out unfitness for work.
For your information. Employees who have concluded employment contracts for up to two months are paid compensation upon dismissal at the rate of two working days per month of work (Article 291 of the Labor Code of the Russian Federation).
Here are examples of counting days of unused vacation.
Example 2
An employee of an institution leaves after working in it for 7 months and 20 days. He was not given annual leave. Vacation duration is 42 calendar days. Calculate the days of unused vacation.
According to clause 35 of Rules N 169, it is necessary to round off 7 months and 20 days to 8 months, since 20 days make up at least half a month. For each month of the working year, this employee is entitled to 3.5 calendar days of vacation (42 calendar days / 12 months). Thus, for 8 months of work in an institution, he needs to pay compensation for 28 calendar days (3.5 calendar days x 8 months).
Example 3
The employee was hired on 09/01/2015, and resigned on 08/08/2016. In the institution, for each year of work, vacations of 28 calendar days are granted. During the specified period, this employee was granted leave equal to 10 calendar days. We calculate the number of days of unused vacation that must be paid upon dismissal.
It follows from the conditions of the example that the employee worked for 11 full months, respectively, he is entitled to full compensation, that is, for 28 calendar days. Due to the fact that the employee has already been granted leave of 10 calendar days, he needs to pay compensation for only 18 calendar days (28 - 10).
The employee worked in the institution for 1 year, 5 months and 18 days before leaving. The duration of leave for this employee is 28 calendar days. During his work, he was on vacation lasting 14 calendar days. In addition, during the period of work, the employee was on sick leave for 7 working days. Calculate the days of unused vacation.
So, let's translate the period of work of this employee into months. We get 18 months, since in this example 18 days must be rounded up to a month (more than half a month).
Note. Days of temporary disability are included in the length of service for granting leave (Article 121 of the Labor Code of the Russian Federation).
For each month worked, an employee is entitled to 2.33 calendar days of vacation (28 calendar days / 12 months). Thus, the employee must be paid compensation for 27.94 calendar days (18 months x 2.33 calendar days - 14 calendar days) or 28 calendar days if rounding is accepted at the institution.
Example 5
Let's use the conditions of example 4. Suppose that an employee was granted administrative leave of 18 days. Calculate the days of unused vacation.
Article 121 of the Labor Code of the Russian Federation establishes: the time of unpaid leave granted at the request of the employee, not exceeding 14 calendar days during the working year, is included in the length of service for receiving leave.
Therefore, 4 calendar days (18 - 14) of administrative leave are not included in this length of service. Therefore, compensation must be paid for 1 year, 5 months and 14 days, when converted into months, 17 months will be obtained. This time we discard 14 days, since they make up less than half a month. Thus, the employee needs to pay compensation for 21.61 calendar days (2.33 cal. days x 17 months - 18 cal. days), rounded up - for 22 calendar days.
We calculate compensation for unused vacation
The calculation of such compensation must be made in accordance with Art. 139 of the Labor Code of the Russian Federation. This article says that the average daily earnings for compensation for unused vacations are calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and 29.3 (average monthly number of calendar days).
In addition, when calculating compensation, one must be guided by the Regulation on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922 (hereinafter - Regulation N 922).
Here is an example of compensation calculation.
The employee worked in the institution from 06/15/2015 to 08/31/2016. His salary, taking into account all additional payments and allowances, is 35,000 rubles. at 40 hour working week. In the institution, employees are provided with an annual basic paid leave of 28 calendar days. During the period of work, the employee was:
- on sick leave - from 01/25/2016 to 01/29/2016 (5 calendar days), the amount of temporary disability benefits amounted to 9,000 rubles;
- on annual paid leave - from 04/18/2016 to 04/27/2016 (10 calendar days), the amount of vacation pay is 11,700 rubles. Calculate compensation for unused vacation.
It follows from the conditions of the example that the employee worked 14 months and 18 days. We round up to 15 months, since 18 days make up at least half a month. This means that compensation for unused vacation must be paid for 24.95 calendar days (15 months x 2.33 calendar days - 10 calendar days). Again, round up to 25 calendar days.
To calculate the average earnings according to the conditions of the example, it is necessary to take the period from 09/01/2015 to 08/31/2016.
Recall that clause 7 of Regulation N 922 establishes: if an employee did not have actually accrued wages or actually worked days for the billing period and before the start of the billing period, his average earnings are determined based on the amount of wages actually accrued for the days he actually worked in the month the occurrence of a case with which the preservation of average earnings is connected.
When calculating the number of calendar days taken into account when calculating average earnings, it is necessary to apply the norm of clause 10 of Regulation N 922, which says: if one or several months of the billing period have not been fully worked out or time has been excluded from them in accordance with clause 5 this provision, the average daily earnings are calculated by dividing the amount of actually accrued wages for the billing period by the sum of the average monthly number of calendar days (29.3) multiplied by the number of full calendar months and the number of calendar days in incomplete calendar months. The number of calendar days in an incomplete calendar month is calculated by dividing the average monthly number of calendar days (29.3) by the number of calendar days of that month and multiplying by the number of calendar days falling on the time worked in that month.
According to clause 5 of Regulation N 922, when calculating average earnings, time is excluded from the billing period, as well as the amounts accrued during this time:
- if the employee retained average earnings in accordance with the legislation of the Russian Federation;
- if the employee received temporary disability benefits or maternity benefits.
1. January 2016 (the employee was on sick leave from 01/25/2016 to 01/29/2016).
His salary amounted to 23,333.34 rubles. (35,000 rubles / 15 working days x 10 working days).
The number of calendar days taken into account when calculating average earnings is 24.57 (29.3 / 31 x (31 - 5)).
2. April 2016 (the employee was on vacation from 04/18/2016 to 04/27/2016). The employee's salary is 28,333.34 rubles. (35,000 rubles / 21 working days x 17 working days).
The number of calendar days taken into account when calculating average earnings is 19.53 (29.3 / 30 x (30 - 10)).
So, the employee's earnings for the billing period will be 401,666.68 rubles. (35,000 rubles x 10 months + 23,333.34 rubles + 28,333.34 rubles). The number of calendar days in this example is 337.1 (29.3 calendar days x 10 months + 24.57 calendar days + 19.53 calendar days). The average daily earnings for payment of compensation for unused vacation will be equal to 1,191.54 rubles. (401,666.68 rubles / 337.1 calendar days).
The amount of compensation for unused vacation will be 29,788.50 rubles. (1,191.54 rubles x 25 calendar days).
Note! Payment of wages and compensation for unused vacation must be made by the employer, regardless of the basis for terminating the employment contract.
severance pay
Labor legislation establishes cases when the employer is obliged to pay severance pay. All of them are listed in Art. 178 of the Labor Code of the Russian Federation. In addition, this article determines the amount of the severance pay paid for each case.
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Severance pay |
Grounds for terminating an employment contract |
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Average monthly income. It is retained for the period of employment, but not more than two months from the date of dismissal (including severance pay) |
Liquidation of an organization (clause 1, part 1, article 81 of the Labor Code of the Russian Federation); |
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Please note that the average monthly earnings are retained by the dismissed employee: |
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Biweekly average earnings |
Refusal of an employee to transfer to another job, necessary for him in accordance with a medical certificate issued in the manner prescribed federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer (clause 8, part 1, article 77 of the Labor Code of the Russian Federation); |
Note! An employment or collective agreement may provide for other cases of payment of severance pay, as well as establish increased amounts of these benefits (Article 178 of the Labor Code of the Russian Federation).
Example 7
From 08/01/2016, the employment contract with the employee was terminated due to the reduction in the number of employees of the organization. In this case, the billing period is the period from 08/01/2015 to 07/31/2016. During this period, he was paid a salary of 560,000 rubles. In addition, the employee worked this period in full - 246 working days. Calculate the amount of severance pay.
So, due to the fact that the employment contract was terminated due to the reduction in the number of employees of the organization, the employee must pay severance pay for two months in the amount of his average earnings.
The average earnings must be calculated in accordance with paragraph 9 of Regulation N 922, which says: the average daily earnings, except for the cases of determining the average earnings for paying holidays and paying compensation for unused holidays, is calculated by dividing the amount of wages actually accrued for the days worked by billing period, including bonuses and remuneration accounted for in accordance with paragraph 15 of this provision, for the number of days actually worked in this period.
Consequently, the average daily earnings of an employee will be 2,276.42 rubles. (560,000 rubles / 246 working days).
The first month after the dismissal is August, it has 23 working days.
The amount of the severance pay will be equal to 52,357.66 rubles. (2,276.42 rubles x 23 working days).
The second month after the dismissal is September, it has 22 working days.
The amount of average earnings for the period of employment for the second month after dismissal will be 50,081.24 rubles. (2,276.42 rubles x 22 working days).
From 08/01/2016, the employment contract with the employee was terminated due to his refusal to transfer to work in another area together with the employer. In this case, the billing period is the period from 08/01/2015 to 07/31/2016. During this period, he was paid a salary of 560,000 rubles. The specified period was not fully worked out by the employee: he was on sick leave from 02/01/2016 to 02/10/2016, temporary disability benefits amounted to 16,600 rubles. Calculate the amount of severance pay.
It follows from the conditions of the example that the employment contract with the employee was terminated due to his refusal to transfer to work in another area together with the employer, which means that he is entitled to a severance pay in the amount of two weeks of average earnings.
Due to the fact that the employee has not fully worked out the billing period, it is necessary to apply paragraphs. "b" clause 5 of Regulation N 922, according to which, when calculating average earnings, time is excluded from the billing period, as well as amounts accrued during this time, if, in particular, the employee received temporary disability benefits.
Accordingly, the salary actually accrued to the employee for the days he worked in the billing period will be 543,400 rubles. (560,000 - 16,600). It follows from the conditions of the example that the employee was on sick leave for 10 days, including days off, that is, 8 working days. The number of days actually worked by the employee in this period is 238 working days (246 - 8).
The average daily earnings of an employee will be 2,283.19 rubles. (543,400 rubles / 238 working days).
Upon termination of the employment contract, severance pay is paid in the amount of two weeks of average earnings, that is, for 10 working days. The amount of the severance pay will be 22,831.9 rubles. (2,283.19 rubles x 10 working days).
Note! In conclusion, we note that if an employee is absent from work on the day of dismissal, payments are made to him no later than the day following the day when he submits a request for calculation (part 1 of article 140 of the Labor Code of the Russian Federation).
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In conclusion, we repeat once again that, according to Art. 84.1 of the Labor Code of the Russian Federation on the day the employment contract is terminated, the employer is obliged to issue a work book to the employee and make settlements with him in accordance with Art. 140 of the Labor Code of the Russian Federation. This means that upon dismissal for any of the reasons, all amounts due to the employee must be paid to him on the day the employment relationship is terminated. Such amounts include wages in the month of dismissal, compensation for unused vacation and severance pay, if it is provided for by law or normative act organizations.
IN AND. Goryushina,
journal expert
"Payment in the state (municipal)
institution: accounting and taxation"
Payments upon dismissal of one's own free will the employee can receive on his last working day. This is not only wages, but also compensation for vacation days that were not used, as well as those payments that are provided for in the company's local documents.
The procedure for dismissal of one's own free will and the possibility of withdrawing a letter of resignation
Dismissal of one's own free will implies that the employee himself becomes the initiator of the termination of the employment relationship. In order to somehow protect the employer in such a situation, the Labor Code of the Russian Federation obliges the employee to work for another 2 weeks after he submits an application for resignation. During this time, the employer must find a suitable replacement and take over from the departing employee, as well as prepare for a cash settlement with him.
The employee must notify the employer of his dismissal in writing. And over the next 2 weeks, it would be nice to solve all the monetary moments in order to receive a calculation and a work book on the last working day, and not ask questions why such an amount turned out. However, in practice, not all employers tell employees how much they will receive - hence disputes, refusals to sign a dismissal order, insults, and even litigation.
It must also be remembered that, by law, an employee, right up to the very dismissal, has the right to withdrawal of a letter of resignation of one's own free will. Therefore, the employer should carry out the calculation of payments and the preparation of all documents, taking into account this possibility.
Deadline for settlement after filing an application for dismissal
Art. 140 of the Labor Code of the Russian Federation discloses the terms in which settlements are carried out upon dismissal. For whatever article there is a break in the working relationship, the settlement must be made on the last day when the employee performs his duties. If the employee decided to leave of his own free will, then he will receive all payments only 2 weeks after the application is submitted. But this is in a normal situation.
In the event of certain life circumstances, if the employee reaches an agreement with the employer regarding the possibility of premature termination of the employment relationship, the statutory 2-week working period may be reduced. Here the parties, of course, can apply another article - by agreement of the parties. Then the dismissal can be issued at least on the day the application for resignation is submitted.
Which article to use is up to the parties to decide. If, nevertheless, an article is chosen of one's own free will, but with a shorter working period, then the specific date of termination of the employment relationship is indicated in the application, and it is on this day that the employee is settled.
Don't know your rights?
There is one more moment - when the employee fell ill during the last 2 weeks and on the day of dismissal was at home on sick leave. Then the employer must give the employee the money as soon as he can pick it up, but not the same day, but the next day after receiving the demand. Such a delay is given to prepare the required amount.
What payments does a resigning employee receive under the article Labor Code of the Russian Federation in 2016-2017
There are 2 main ingredients voluntary termination benefits:
- salary;
- compensation for unused vacation days.
The first thing an employee thinks about when calculating is salary. He checks the received payslip, how many days it contains, whether allowances and bonuses are taken into account. However, in addition to this, you need to remember that you can also demand compensation for unused vacation days.
Only the due days of annual leave for the current and previous years are subject to compensation. If the employee did not go on vacation for several years in a row and at the same time did not demand monetary compensation, then all amounts for a period of more than 2 years are burned out. This moment must be tracked by the employee himself and apply for compensation at the end of the year in order to receive the money due.
Many people think about severance pay when they leave. But the law provides for its payment only in certain cases of termination of employment, most often associated with a reduction in staff or the liquidation of an enterprise. In the event of voluntary dismissal, the employer is not required to pay severance pay.
Responsibility of the employer for the delay in payment upon dismissal of his own free will in 2016-2017
When delayed in 2016-2017 -m voluntary termination benefits employer, according to Art. 142 of the Labor Code of the Russian Federation, may be punished financially. Size liability established in Art. 236 of the Labor Code of the Russian Federation.
So, for delayed payments upon dismissal for each day, the employer is charged 1/150 of the key rate of the Central Bank of Russia. You can find out the size of the current rate on the official website of the Central Bank of the Russian Federation.
But if the employer does not want to pay the debt, it is unlikely that he will apply sanctions to himself. To collect a debt with a penalty, you must contact the authorized body, for example, the labor inspectorate (see:Where to complain about the employer, and how to complain correctly? ). However, they can only issue an order for the payment of debts if they establish that the employer has violated labor laws and the procedure for making settlements upon dismissal.
If the employer does not comply with the order of the labor inspectorate, then there is only one way - to the court. You can also first contact the prosecutor to supervise this issue - this can encourage the employer to quickly resolve all issues in favor of the employee.
All settlements with the employee are carried out on the last working day. If a dispute arises about the amount of the payment, then on the day of dismissal, the employer must give out only the amount on which a consensus is reached, payments for the disputed amounts occur after a specific decision is made. If the amount of the payment raises questions for the employee, he can contact the labor inspectorate to check the calculation for compliance with the current legislation.
Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.
In the event of a dispute about the amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article.
Commentary on Article 140 of the Labor Code of the Russian Federation
§ 1. The right of the employee to receive all amounts due to him from the organization on the day of dismissal is currently very often violated in connection with general position with wages. The application of this rule is connected with the need to correctly determine the day of dismissal in order to exclude the employee from walking for the payments due to him after his relationship with the employer has already been terminated.
The day of dismissal is considered the last day of work for which the employee must be paid wages.
§ 2. When establishing the day of dismissal, when it is determined in connection with the expiration of any terms, the rules for calculating these terms, enshrined in Art. 14 TK. In particular, this article provides that if the last day of the term (for example, warning the employer in case of dismissal of the employee of his own free will) falls on a non-working day, then the expiration day of the term is the next working day following it. It is on this day that the employee must be given all the amounts due to him from the organization.
§ 3. Violation by the employer due date payments upon dismissal are entailed by his obligation to pay them with the payment of interest (monetary compensation) for each day of delay starting from the next day after the due date for payment until the day of the actual calculation, inclusive (see commentary to Article 236).
Another commentary on article 140 of the Labor Code of the Russian Federation
1. Upon termination of the employment contract, the employee must be paid all the amounts due to him: wages for the current month; wages for the previous billing period, if it was not paid on time, as well as monetary compensation for the delay in payment of wages; compensation for unused vacation; severance pay; warranty and compensation payments; amounts due to an employee on the basis of a collective agreement. The day of payment of all amounts due to the employee is the day of dismissal, which is considered the last day of work.
2. If on the day of dismissal the employee was absent from work, then the payment of the amounts due to the employee on this day is impossible. Regardless of the reason for the absence from work, all payments must be made no later than the next business day after the employee submits a request for payment.
3. If there is a dispute between the employee and the employer about the amount of amounts due to the employee, the employer is obliged to pay within the specified time limits the part of the calculated amount not disputed by him.
