How long does it take to receive payment after dismissal? Severance pay upon dismissal

The dismissal procedure begins with writing a statement, concluding an agreement or issuing an order, depending on the reason for termination of the employment contract. And it always ends with the last working day and the calculation that the employer must make. What is included in this concept and what period is provided for this by the Labor Code?

What is calculation

The common concept of “payment upon dismissal” hides a large number of different payments that an organization must make if the employment contract with an employee is terminated. However, the composition of such payments may vary depending on the reason for leaving. It always includes:

• wages for the last days worked;
• compensation for unused vacation or vacation pay if a person goes on vacation with subsequent dismissal.

The remaining components, such as severance pay, depend on the reason for dismissal (staff reduction, liquidation of the organization, agreement of the parties).

It is worth noting that if, upon termination of an employment contract before the end of the calendar year, a person has already used vacation for this period, then the accounting department has the right to withhold funds previously paid from him for vacation days not taken off. In this case, the due salary is reduced by the corresponding amount, but not more than 20% (Part 1 of Article 138 of the Labor Code of the Russian Federation). If more money has been accrued for return, then the person who resigned can return it voluntarily (to the cash desk or to an account), or they can be recovered in court.

When is payment due upon dismissal made?

Article 140 of the Labor Code of the Russian Federation determines that the employer is obliged to resolve all financial issues with the employee on his last working day. If a person did not work on the day of dismissal, then the question of when payment should be given upon dismissal is decided by mutual agreement of the parties. Moreover, after the dismissed employee makes a demand to pay all amounts due to him, the organization’s management must ensure the transfer of funds no later than the next day after that.

If there is a dispute about the amount owed, the employer must still pay the money in the amount recognized. For the remaining part, the employee should contact the court or the state labor inspectorate.

If the employee has a day off

Some situations require a special approach. For example, when should payment be paid upon dismissal if its date falls on a person’s day off? The answer is simple: on the next working day. This follows from the norms of Article 14 of the Labor Code of the Russian Federation, which states that if the date indicated in the application as the day of expiration of the warning period turns out to be a non-working day, the last working day is the first weekday after that. There is no delay in this case, and if, for example, the application indicates December 24 (Sunday), the employee must go to work on December 25, Monday, and receive his money and documents.

If the administration has a day off

But if the dismissed employee had a shift schedule and the date of his departure coincided with the organization’s administration’s holiday, it is advisable to make the payment the day before, that is, on the nearest working day before that. For example, if the dismissal date fell on Sunday, then it is advisable to pay on Friday. In this case, management does not have the right to postpone payments to the next weekday; this follows from the provisions of Article 84.1 of the Labor Code of the Russian Federation. Rostrud generally believes (letter dated June 18, 2012 No. 863-6-1) that in this case it is necessary to call an accountant and a personnel officer to work so that they fill out all the necessary documents and issue the money on the last working day. But this requires their written consent (Article 113 of the Labor Code of the Russian Federation), which they may not give, as well as payment for time worked at a double rate. Therefore, it will be easier for management to pay the dismissed employee in advance.

When to pay taxes when dismissing an employee

All payments made as part of the calculation:

• are subject to personal income tax and insurance contributions (except for severance pay);
• are subject to inclusion in the organization's expenses for tax purposes (income tax or single tax on the simplified tax system).

Severance pay, if it does not exceed three times the average monthly salary, is not subject to personal income tax and insurance contributions. For persons who work in the Far North and equivalent areas, the amount of non-taxable benefits is 6 average monthly wages.

The transfer of personal income tax to the budget must be made the next day after the payment of money to an individual (clause 6 of Article 226 of the Tax Code of the Russian Federation), and the transfer of insurance premiums occurs according to the general rule: on the 15th day of the calendar month following the calendar month for which they were accrued .

Responsibility for delay

If the employer does not meet the payment deadline provided for by labor legislation, in accordance with Article 236 of the Labor Code of the Russian Federation, he must pay compensation for each day of delay in the amount of 1/150 of the Central Bank key rate in effect during the period of delay. In addition, Article 5.27 of the Code of Administrative Offenses of the Russian Federation provides for fines for late payment of wages, which equally apply to calculations upon dismissal. The fine is:

• for officials - from 20,000 to 30,000 rubles (including with disqualification for up to 3 years);
• for individual entrepreneurs - from 10,000 to 30,000 rubles;
• for organizations - from 50,000 to 100,000 rubles.

In addition, in some cases, criminal liability of officials is provided.

People often refer to severance pay as all the money they receive when they quit. The exciting situation of changing jobs is always fraught with a bunch of questions from dismissed employees. Therefore, in this article I will answer an important question in as much detail as possible - What will the employee be paid upon dismissal? How are payments calculated, what are the consequences for the employer of non-payment or delay in this case, and other related issues.

Severance pay upon dismissal is stipulated by Article 178 of the Labor Code of the Russian Federation, which is called “Severance pay” and refers to Chapter 27 “Guarantees and compensation to employees related to termination of an employment contract.”

○ Severance pay upon dismissal.

Severance pay is a sum of money paid in a lump sum upon dismissal for certain reasons.

If something unpleasant for the workers happens - the liquidation of an organization or a massive reduction in the number (staff) of employees, in this case the employee is required to pay severance pay in the amount of average monthly earnings. In addition, he will retain his average monthly salary for the period of employment, but no longer than two months from the date of dismissal (including severance pay).

EXAMPLE! If employee Vasilisa the Beautiful has an average monthly salary of 18,200 rubles, and employee Zmey Gorynych has 22,660 rubles, both will receive exactly these amounts as severance pay upon layoffs.

However, if an enterprise or organization has a collective agreement stipulating that when dismissing employees during liquidation or reduction of staff, everyone is paid a severance pay of 30,000 rubles, then this is exactly the amount that will be paid to everyone.

IMPORTANT! In labor law, along with the Labor Code, other acts apply equally if they improve the situation of the employee.

If a laid-off employee applied to the employment service body, but was not employed within two weeks (about which he was given a corresponding decision by this body), then, by providing his work book and this decision at his old job, he can count on an average monthly salary of within the third month from the date of dismissal. But this case is exceptional.

Severance pay in the amount of two weeks' average earnings paid upon termination of the employment contract in the cases below.

1. If the employee has been issued a medical certificate that does not allow him to work under the conditions under which he was once hired for this job, the employer offered work in another position, but the employee refused (or the employer does not have a suitable vacancy). In this case, the employee is dismissed under clause 8 of part one of Article 77 of the Labor Code of the Russian Federation.
2. The situation could get worse - and the employee, due to some serious health reasons, is assigned a “non-working” disability group by the Medical and Sanitary Examination. It turns out that he is completely incapable of working and must be fired immediately on the day the conclusion is issued due to circumstances beyond the control of the parties, paragraph 5 of part one of Article 83 of the Labor Code of the Russian Federation.
3. The employee was called up for compulsory military service (the law in this case equates the alternative civilian service to this service).

   EXAMPLE!If employee Ivan Zhukov received a summons and he honestly joined the army, and before that his average monthly earnings were 22,500, then upon settlement he will be paid severance pay in the amount of 11,250. In addition, he will be paid wages worked and compensation for unused vacation . There will be something to spend the holidays on!

4. The practice of labor relations is quite extensive, and our courts observe procedural deadlines and can take quite a long time to make their final decision. Thus, a situation may arise that you are hired to replace a person who filed a lawsuit for illegal dismissal and reinstatement at his former workplace in the same status.
   And this citizen was reinstated by the court to his former workplace. Unfortunately for you, as someone who works in this place today, the employer is forced to fire you (the basis is paragraph 2 of part one of Article 83 of the Labor Code of the Russian Federation). In this case, a weak form of compensation for your suffering will be the payment of severance pay.
5. It may happen that the employer is forced to move to another area for a number of reasons. If an employee does not agree to be transferred to work in another area together with the employer and refuses to move, then, in accordance with paragraph 9 of part one of Article 77 of the Labor Code of the Russian Federation, he resigns and is paid severance pay in the amount of two weeks’ average earnings.

○ Payments upon dismissal by agreement of the parties.

Payments upon dismissal by agreement of the parties are not required by law. However, payments and amounts of severance payments may be stipulated on the basis of an employment or collective agreement. In addition, payment may be stipulated in the agreement on termination of the employment contract itself.

EXAMPLE! Having written a letter of resignation by agreement of the parties from Field of Miracles LLC, Cat Basilio stipulated (and this was included in writing in the agreement) that his severance pay would be 5,000 rubles. This amount was added to his salary and compensation for unused vacation.

○ Deadlines for payment of severance pay upon dismissal.

The deadline for payment of severance pay upon dismissal is the employee’s last working day, when he will be given:

• Wages.
• Compensation for unused vacation.
• Severance pay, if it is stipulated by law or other act (collective agreement, employment contract, agreement of the parties).

IMPORTANT! The sums of money that must be paid to an employee dismissed due to the liquidation of the organization or due to a reduction in the number or staff, for the second and, in exceptional cases, for the third month of the employment period, are not considered severance pay! Accordingly, their payment terms are determined locally.

Receiving payments upon dismissal of one's own free will is the right of any employee, and this includes not only wages for the period worked, but also a number of other accruals.

Knowing and being able to defend your rights are important skills that will allow you to receive from your employer the full amount of money that is required by law.

When dismissing at one's own request, the process of terminating the employment relationship is initiated by the employee of the organization himself.

According to Russian labor legislation, after notifying the employer of your intention to quit, you need to work for another two weeks, during which he has the opportunity to select another person for the vacated position.

By mutual agreement of the parties to the employment contract, the period may be reduced. In any case, the first document for formalizing dismissal is a written statement.

It is also important for the resigning employee to keep in mind that he can withdraw his application up to the end of the required two weeks of work. This possibility is provided for by law, so the employer does not have the right to refuse, even if he has already found a replacement employee (except for the case when a new employee cannot be refused - for example, when transferring from another company).

In order to avoid violation of his rights, the employee must notify the refusal of dismissal also in the form of a written statement, which can subsequently be used as evidence of a violation of his rights in case of forced termination of the employment agreement.

Upon termination of the relationship, a work book is filled out and returned to the employee along with other documents (for example, a higher education diploma) stored in the organization.

Dismissal during the probationary period

A probationary period is a period during which the employer evaluates how suitable a particular employee is for the position, and the employee, in turn, evaluates whether his expectations about job responsibilities coincide with reality.

The main feature of voluntary dismissal during the probationary period is the shortened period for consideration of the application. In particular, the employer must consider the application within three days and has no right to delay this period.

The duration of the probationary period is established in the employment agreement or an annex to it. As a general rule, it cannot exceed three months. However, for management positions this period can be extended to 6 months.

For fixed-term employment contracts for a period of up to 2 months, a trial period cannot be established in principle, and for contracts up to six months, the maximum trial period is two weeks. In any of the above cases, the employee is not required to provide reasons for his dismissal, and has the right to terminate the employment contract at any time.

Probationary employees have the same rights to receive severance payments as regular employees of the organization.

What should an employee be paid?

Let's consider what estimated payments the employer must pay upon dismissal at his own request.

According to labor legislation, a resigning employee is entitled to two mandatory types of payments:

• salary for the period worked;
• compensatory payment for unused vacations.

Wages must include not only salary, but also all allowances, bonuses, etc. provided for in the contract or local regulations. As for compensation for vacations (payment of vacation pay), there are two options for the development of the situation: the employee either agrees to the payment, or takes a vacation with subsequent dismissal. In the second case, the final settlement with the employee and the return of the work book must be made before he goes on vacation.

There are rarely situations when an employee takes sick leave during vacation - in such a situation he is entitled to temporary disability benefits, but the period of vacation for sick days is not extended. The provisions of the collective agreement may provide for other types of payments due to resigning employees, but such contracts are rare.

If you quit at your own request, there is no severance pay - labor legislation regulates its payment only when the company is liquidated or the workforce is reduced.

Payout calculations with examples

Payroll preparation

The salary paid upon dismissal depends on what payment system is adopted at the enterprise. Examples:

• Time system– in this case, payment is made for days worked. If the salary was 25,000 rubles, and out of 22 working days 12 were actually worked, then the salary at the time of dismissal will be: 25,000 / 22 * ​​12 = 13,636 rubles.
• Piece system– with such a system, it does not matter how many days the employee has worked. The results of his work are measured in specific natural indicators, for example, in units of manufactured products. Let’s assume that during the month in which the employment contract is terminated, the employee produced 25 products, and the rate for each of them is 400 rubles. Then the salary due to him will be: 25 * 400 = 10,000 rubles.

In practice, any other payment system can be used - variable piecework, progressive piecework, bonus, etc. However, the above forms are most common.

Compensation calculation

Calculating compensation for unused vacation is a more labor-intensive process - accountants most often use special software for this.

In simplified form, it can be represented as the following sequence of actions:

• Determination of length of service for granting leave. To do this, the date of hiring is subtracted from the date of dismissal. Periods of being on administrative leave at one's own expense for more than 14 days are also excluded from the length of service. This results in a certain number of full months and days, which are rounded according to the following principle: less than 15 days - down, more than 15 days - up.
• Calculation of the required number of vacation days based on length of service and the provisions of the employment contract.
• Determining the number of unused vacation days by subtracting actually used vacations from the calculated value.
• Calculation of average daily earnings: wages for the previous 12 months divided by the actual time worked for a given period.
• Calculation of compensation.

For example, an employee was hired on August 13, 2015, and fired on September 16, 2016. He did not take vacations at his own expense, which means his work experience was 13 months and 10 days. For compensation purposes, the period will be 13 months (rounded down).

According to the employment contract, the employee is entitled to 36 days of vacation, then the vacation allotted to him will be 36 / 12 * 13 = 39 days. In fact, he used 15 days in June 2016, then the number of unused days was 39 - 15 = 24 days. The salary for the previous year amounted to 460,000 rubles, the period was fully worked (except for vacation time).

Then the average earnings per day will be: 460,000 / (29.3*11 + 29.3/30*15) = 1365.19 rubles, where 29.3 is the average number of days in a month (according to the Labor Code of the Russian Federation), 30 is the number days in June 2016, 15 – actual number of days worked in June 2016. Thus, compensation for unused vacation will be: 1365.19 * 24 = 32764.56 rubles.

Payment terms

How to correctly calculate the cost of an employee when terminating an employment contract with him, regardless of the reasons? And also: what is the deadline for dismissal? These and other related issues are the subject of this article.

The settlement period for dismissal is the time for which the employee must be paid upon termination of the employment relationship, that is, pay all the money that is practically due to the former employee of the institution. By law, the employer must not only calculate it, but also return the completed work book to him on the same day that he quits, although sometimes situations arise when this is difficult to do.

What payments are due upon termination of an employment contract?

When terminating an employment relationship with an employee of an enterprise or organization for any of the existing reasons that are provided for in the Labor Code of the Russian Federation, the employer must pay him in full. All payments upon dismissal are enshrined in the labor code and must be made in strict accordance with its requirements.

Thus, when settling a settlement with an employee related to his dismissal from his position, regardless of the reasons and who initiated the dismissal, he must be paid:

• salary due for time worked in the current month;
• severance pay (in amounts and cases stipulated by the legislation of the Russian Federation);
• compensation for unused vacation.

All these payments due to the resigning employee must be made upon settlement with him in the terms and amounts provided for by the Labor Code of the Russian Federation.

Deadline for payment of wages upon dismissal

According to Art. 140 of the Labor Code of the Russian Federation, the deadline for payment of salary upon dismissal, which is due to a resigning employee of an enterprise or company, is made directly on the day when a certain employee resigns, that is, on the last day of work.

It is worth considering that if an employee of an enterprise or department did not work on the day of his release from his position, then the terms for payment of wages upon dismissal are different, namely, the calculation is made no later than the next day after the request of the dismissed employee to calculate it.

It happens that an employee ends up on sick leave on the day of dismissal. This can only happen if the contract is terminated on his own initiative or by mutual agreement of the parties. In this case, as an option, payment of wages can be made in non-cash form - by transferring it to a bank card. But employers don't always do this. In this case, the law allows for the calculation of wages and all other payments no later than the next day after the dismissal person applies. In addition, in this case, the employee will have to pay for sick leave.

Situations cannot be ruled out when disputes arise about the amount of the amount to be paid. In this case, the manager must, within the specified period of time, in accordance with the Labor Code of the Russian Federation, pay the amount of wages that is not disputed by him. The disputed part of the amount can be paid later, either by mutual agreement or by court decision.

A situation may arise when an employee of a company upon dismissal has an outstanding debt to management. The employer, when making calculations, can withhold the funds allocated to him by law, but in this case it is necessary to take into account the restrictions established by the legislation of the Russian Federation (more details about this in Articles 137, 138, 248 of the Labor Code of the Russian Federation). The amount of deductions, in this case, should not exceed 20% of the salary of the employee with whom the employment contract is terminated (Article 138 of the Labor Code of the Russian Federation).

In addition, it is worth noting that if an employee causes any loss to the employer, upon settlement, he has the right to recover it without a court decision, in the case where its amount does not exceed the average monthly earnings of the dismissed person (Article 248 of the Labor Code of the Russian Federation). But if the damage caused exceeds this permissible standard, the employer is obliged to go to court. But in no case can an employee’s debt be the basis for untimely settlement with him upon dismissal.

In case of late payment, the employee has every right to go to court.

Payment of severance pay

Severance pay is a sum of money determined by the Labor Code of the Russian Federation or a collective contract and paid to an employee of a department or enterprise on the day of his dismissal from his position. The stipulated payment of benefits upon dismissal and its amount depend entirely on the various grounds for terminating the employment contract with the employee.

When an enterprise is liquidated or there is a large-scale reduction in staff, a one-time severance pay is paid in the amount of average monthly earnings (Article 178 of the Labor Code of the Russian Federation).

If an employment contract is terminated for a number of specific reasons, severance pay may be paid in the amount of 2 weeks' average earnings. A one-time benefit of this amount is paid when calculating due to dismissal for the following reasons (Article 178 of the Labor Code of the Russian Federation):

• conscription of an institution employee for military service or in case of assignment to alternative civilian service;
• return and reinstatement of the employee who previously performed this work;
• recognition of an employee of an institution as completely incapable of any type of activity;
• refusal of an employee of the department to work due to changes previously determined by the parties to the fixed conditions of the employment agreement;
• refusal of the worker to be transferred to another location together with the employer.

It is significant that severance pay is paid to the employee on the day of dismissal. But an employment or collective agreement may also stipulate other cases of payment of severance pay. This is provided for in Art. 178 Labor Code of the Russian Federation.

Upon termination of the employment relationship, the employer is obliged to make a settlement with the employee in accordance with labor legislation. In this article we will look at the procedure for registering dismissal and making payments.

What must an employer pay an employee after dismissal?

The enterprise is obliged to make all payments to the resigning employee that are provided for by labor legislation. The list looks like this:

• Salary for the period worked. It is always paid, regardless of the reason for termination of the employment contract.
• Bonuses and incentives in accordance with the collective and labor agreement.
• Compensation for unused vacation.
• Severance pay.

The calculation of payments for each employee is done individually and depends on the reason for dismissal.

Payment of severance pay

Severance pay is paid to employees whose employment contract is terminated at the initiative of the employer. Its minimum size depends on the reason for dismissal and is regulated by Art. 178 Labor Code of the Russian Federation.

The amount of severance pay is as follows:

Two weeks earnings if the contract was terminated due to:

• the employee’s refusal to transfer to another position if the current work does not meet medical indications;
• conscription of an employee for military or alternative service;
• reinstatement to the position of the employee who previously held it;
• the employee’s refusal to continue working in connection with the organization’s move to another locality;
• recognition of the employee’s total incapacity for work (there must be an MSEC conclusion);
• the employee’s refusal to continue the employment contract due to its change.

One month's earnings, if the reason for dismissal is staff reduction or complete liquidation of the organization. In addition, such persons are entitled to an additional payment of up to two average salaries until a new employment agreement is concluded.

Triple earnings, if the employment relationship with the head of the organization or the chief accountant is terminated early due to a change of owner.

We calculate compensation for unused vacation

If at the time of termination of the employment contract the employee has not used all the leave, including additional leave, the employer must compensate it in cash. The amount of compensation depends on the number of unused rest days and the employee’s average salary. The calculation algorithm is as follows:

Interesting information

The termination of an employment contract is formalized by order of the manager. The employee must sign this order. A certified copy of the said order must be issued to the employee upon his request. If the order to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to put his signature on it, a corresponding note is left on the order.

• The number of days for which compensation must be paid is determined. There are two ways to do this. The first of them involves multiplying the number of vacation days allotted to the employee per year by the number of months that have passed since the last vacation taken. The result is divided by twelve. The second method involves determining the number of days of rest for each month worked. For example, 30 days of rest are allowed per year, that is, 2.5 days per month.
• At the next stage, the average salary of an employee for one day is determined. All payments, except sick leave and social assistance, that the employee received at the enterprise over the last twelve months are taken into account. The amount of total income is divided by the number of working days in the accounting year. It must be taken into account that if an employee has unused vacation for previous years, then the average salary for calculating compensation is still taken for the last twelve months.
• Compensation is determined by multiplying the number of unused days and average earnings.

When upon dismissal should payment be issued?

According to Art. 84.1 of the Labor Code of the Russian Federation, settlements with a resigning employee must be made on his last working day. If for some reason the employee is not at work on this day, the payment must be made no later than the next day on which he applied for it.

Responsibility of the employer for violation of deadlines for settlement payments

For late payment to an employee upon dismissal, the employer may be fined. The fine is imposed by the labor inspectorate. Its size is as follows:

• for organizations – from 30,000 to 50,000 rubles;
• for officials – from 10,000 to 20,000 rubles;
• for individual entrepreneurs - from 1000 to 5000 rubles.

Also, in case of delay in payment, the employer is obliged to pay a fine to the former employee, in accordance with Art. 236 Labor Code of the Russian Federation. Its size cannot be less than 1/150 of the Central Bank discount rate for each day of delay.

The Labor Code of the Russian Federation determines only the minimum amount of compensation for late wages, while the boss has the right to increase the amount of compensation by specifying it in the employment contract, collective agreement or local regulation.

Taxation issues

Compensation and severance pay that an employer pays to an employee upon dismissal are not subject to personal income tax, according to Art. 217 Tax Code of the Russian Federation. The base for payment of pension and insurance contributions includes all payments to the employee.

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