Upon dismissal, the employee pays. What should an employee be paid? What payments are due upon voluntary dismissal?

Termination employment contract under certain conditions means the payment of severance pay and other compensation amounts subject to tax and insurance contributions.

Termination of an employment contract

Termination of employment involves the fulfillment of certain responsibilities of management towards the dismissed employee. The cases that trigger dismissal are varied. In some situations, the initiative to terminate the contract comes from the employee; in other circumstances, dismissal occurs due to the fault of the employee or taking into account cumulative external factors.

Upon completion of work, employees must be paid the amounts earned. A calculation of a compensatory nature is also required. The amount of payments depends on the conditions of dismissal, the concluded employment contract and the employer’s internal regulations on remuneration.

Grounds for dismissal

The dismissal procedure is preceded by the occurrence of certain circumstances. Among them are the following: the parties’ desire to continue labor Relations, the nature of the concluded agreement, the presence of other circumstances. Dismissal occurs for the following reasons:

1. Employee initiative. As a rule, dismissal under this article is made with the wording “by at will", coming from the employee.
2. At the initiative of management. Happens for various reasons. Some of them are committed taking into account the degree of guilt of the employee: non-compliance by the employee labor discipline, inconsistency with the position held, gross violation of labor duties, disobedience to labor regulations. The termination of the working relationship also occurs due to the refusal of management to renew the contract after the expiration of its term, including the probationary period.
3. Dismissal of senior management employees (directors, chief accountants) upon change of ownership.
4. Termination of labor relations as a result of liquidation of the enterprise, if necessary, reduction of staff.
5. Dismissal is the transfer of an employee to another place of duty.
6. Refusal of employees to further perform their duties under changed working conditions.

Procedure for terminating an employment contract

To terminate an employment contract, the initiating party must confirm its intentions in writing. The employee draws up an application addressed to management; the employer is obliged to send the dismissed employee advance notice.

When leaving at your own request, a corresponding statement is written at least 2 weeks before the designated date. During this time, the employee has the right to withdraw the application and continue working.

Dismissal may occur earlier than the agreed period by agreement of the parties. If the employer is found to be violating labor legislation(delay of wages) the employee’s request to terminate the employment relationship must be satisfied immediately, without a 2-week work period.

In the presence of probationary period the resignation letter is submitted 3 days before the expiration of the probationary period.

The employer also has the right to terminate the contract with the employee during the probationary period by notifying 3 days before the end of the validity period. In other cases, it is somewhat more difficult to fire an unwanted employee.

If the reason for termination of the contract is non-compliance with discipline and internal regulations, then this fact will need to be proven in writing. Before dismissal due to redundancy, the employee will need to be offered another alternative position, if available.

In almost all cases of termination of employment relations, it is necessary to make a full settlement with the employee.

Payments to employees upon dismissal

There are several types of benefits that dismissed employees may qualify for. Among them are the following:

1. Calculation for time worked. The balance of wages representing the employer's debt is paid. The transfer must be made on the day of dismissal.
2. Compensation for unused vacation. All non-vacations due to the employee are taken into account. If there is leave used in advance, the amount previously paid to him is withheld from the employee. If the settlement funds are not sufficient for this, the dismissed employee repays the resulting debt only on a voluntary basis. If refused, the employer has the right to go to court for damages.
3. Severance pay upon dismissal. Paid if termination of the contract occurred at the initiative of the employer. Compensation payments in the amount of 2 weeks, 2 or 3 months of earnings are made in case of reduction or liquidation.

Tax-free payments upon termination of an employment contract

When dismissing an employee, the corresponding amount of personal income tax must be withheld from the settlement amount. The rule affects both payments attributable to wages and compensation accruals. But in some cases, amounts received are not subject to tax.

If an employee is paid upon termination of employment severance pay, then no tax is withheld from his amount exceeding 3 months’ earnings. For workers in the Far North, personal income tax is not withheld from amounts paid equal to 6 times their earnings. In this case, compensation for unused vacation is not taken into account. From this amount of accruals, personal income tax is withheld in full.

Types of payments to employees upon dismissal

1. Hello. I worked as an accountant in a private construction company for 6 years. Due to the change of ownership, the new management decided to dismiss the accounting department. Are their actions legal?

A change in the owner of an organization serves only as a basis for terminating employment relations with the management team, including the chief accountant. Regarding other accounting employees, a change of founders is not a reason for dismissal.

For employees who have previously signed fixed-term contract, upon expiration of its validity, the following payments are due: wages, compensation for unused vacation, other payments, if they are provided for by the internal regulations on wages. All accrued amounts are subject to taxation, with the exception of severance pay exceeding 3 times the average salary.

3. Hello. What to do in the following situation? An employee who has worked for the organization for only 6 months resigns. Previously, by agreement with the employer, he was granted full leave for 28 calendar days. How to calculate severance payments?

If the vacation at the time of termination of the employment contract was used in advance, it is necessary to make a calculation and retain the previously issued funds. The employee can return the difference in the accrued amount on a voluntary basis. In this case, personal income tax also needs to be recalculated.

Payments of salaries, unused vacation, overtime schedules, etc. We will talk about this in more detail later in the article.

Two ways to voluntarily change employer

The Labor Code provides for two articles of leaving work without negative consequences for employee:

1. At your own request.
2. Dismissal by agreement of the parties.

Payments required by law will be the same.

Legal differences

Dismissal by mutual agreement in most cases implies that there is some conflict in the workplace between the employee and the employer. As well as other situations when an employee must leave his place of work:

• selection of fresh personnel by the new director;
• the specialist no longer meets the requirements;
• the conditions for the profitability of the enterprise have changed;
• reorganization and much more.

But if the employee does not intend to write or, as provided in the Labor Code, terminate the contract on his own initiative, then he is offered dismissal by agreement of the parties. Payments in this case are somewhat different from other methods of terminating the contract. That is, such an employee is entitled to mandatory payments, as with any other method of dismissal, but he is also offered additional payments.

This is the fundamental difference. A mutual agreement, as a rule, is always supplemented by some kind of “indemnity” from the side former employer. This could be a one-time benefit equal to the annual salary, a lifetime discount on products, a permanent share of profits, and more. Thus former employee provide compensation for voluntary dismissal.

In case of voluntary dismissal, this is not provided, even if the employee is psychologically pressured and forced to leave the organization.

Judicial practice shows that it is almost impossible to recover after mutual agreement. But it is possible to cancel at the initiative of the employee. It is enough to provide arguments that will prove psychological pressure from the administration.

It is important to know what payments are required by law and the deadlines for voluntary dismissal. Thus, when terminating a contract on his own initiative, an employee may receive:

• wages;
• compensation for unused vacation;
• other transfers in accordance with the law.

Deadlines for voluntary dismissal: will payments be made immediately or will you have to wait?

The main question that worries employees the most is how long to wait for the due payments? The law does not provide for “toleration.” Payment of dismissal benefits and all payments must be made on the day of dismissal. But what to do if the employee is absent for any reason (sick leave, day off)? In this case, all payments must be made no later than the next day after the application.

The employer doesn't know what to do?

It should be noted right away that the final payment on the day of dismissal is not a gift from the company, but an obligation.

If this does not happen, you must immediately contact either the prosecutor’s office or labor inspection. After this, as a rule, the organization always has money. And the managers themselves pay considerable fines for violating labor laws.

How to calculate compensation for unused vacation

In order to find out what amount of payment will be discussed, you need to know the following:

• Number of days worked since the last annual paid leave.
• How many days per year is an employee supposed to be on vacation (for example, teaching staff have about two months).
• Average salary.

Calculation examples

Suppose an employee has the right, according to labor contract, for 30 calendar paid days per year. average salary he has 20 thousand rubles a month. This is approximately 670 rubles per day. Divide the number of calendar days by 30.

It turns out that for every 12 days of work, one day of paid leave is provided. The employee worked for 3 months, that is, 91 days. It is necessary to divide this number by 12 (the number of vacation days the employee has earned).

Let us multiply the resulting result by 670. Therefore, in our example, for 91 days worked, an additional payment of just over 5,080 rubles is due for unused annual paid leave.

This calculation formula is conditional. It is given for better understanding additional payment. Depending on individual labor characteristics employee, the accounting department may use another method. In any case, all formulas and payslips must be requested from the enterprise.

Labor Code of the Russian Federation (LLC): dismissal in compliance with the law

It is important to know that many cases arise when an employee is fired “under the article” and not at his own request. Of course, this is all conditional, since in any case the basis for this is one of the norms of the labor code.

But by “article” many people mean dismissal not at the initiative of the employee. The synonym here is the word “kicked out.” And in order to avoid a negative “article”, it is necessary to carry out all legal procedures when dismissing at your own request. Of course, the employer is obliged to make payments in any case, regardless of the reason, but the employee also has a number of responsibilities. And the most important of them is to notify the administration 2 weeks before the planned dismissal. Many people mistakenly call this period working off.

main feature

Working off is the mandatory performance of labor duties for a certain period. Labor Code of the Russian Federation in in this case does not imply this. It is enough to give written notice that the employee is going to leave work two weeks in advance.

You can go on vacation, sick leave, etc. In this case, no work is provided. This was not in the Labor Code (Article 32 also provided for a warning), nor in the new Labor Code (Article 80).

Common mistake of the “smartest”

Some employees know that there is no work off, and they conclude from this that they can write and terminate the employment relationship at any day. But this misconception very often leads to dismissal for absenteeism, which has a negative impact on subsequent employment.

Therefore, it is very important to know when dismissing what payments are due, and how correctly, from the point of view of law, to change the employer.

Features of calculating payments for sick leave

There are times when an employee is sick for a long time. While on sick leave, he decides to resign and gives formal notice. By wages in this case, they are required to do it on the last day of the two-week period, despite the fact that it falls on sick leave.

There is simply a note in the order that it is impossible to familiarize the person with the contents of this document. Although you can send documents or notifications by registered mail.

Regarding payments for sick leave, then they are calculated within 10 days from the date of submission of a certificate from a medical institution and are made on the general day of transfer of wages to employees.

Labor legislation suggests that termination of cooperation between an employer and an employee can occur at the initiative of one of the parties. Including the employee.

At the same time, they retain a number of rights guaranteed by the legal framework of the Russian Federation.

general information

An employee who terminates his employment relationship with an employer at his own request has the right to receive severance pay in full.

This right is enshrined in the Labor Code of the Russian Federation; no organization can violate it with impunity.

Since the termination of the employment contract occurs at the initiative of the employee, there are no incentives and compensation payments are not provided for by law.

However, this does not mean that an employee who leaves a position on his own initiative should not receive final payment. Payments upon dismissal at one's own request are calculated according to the established formula.

When can an employee end his duties?

An employee who wishes to terminate an employment contract on his own initiative is obliged to notify the employer of his decision. no later than 2 weeks before dismissal.

In this case, notification is considered written application only, which is sent to the employer personally or by registered mail. A verbal agreement has no legal force in matters of dismissal.

A person who has decided to resign has the right to send an application only handwritten in person; typewritten text will not be accepted for consideration.

An employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless another period is established by this Code or another federal law. The specified period begins the next day after the employer receives the employee’s resignation letter.

Do you need information on this issue? and our lawyers will contact you shortly.

When should the calculation be made?

According to established standards, the employer is obliged to pay all funds due to the employee no later than the last working day.

Participants in labor relations may terminate them earlier than the deadline established in the application by agreement. In this case, the agreement can also be oral.

However, payments are still made on the last day indicated by the employee in the application.

Article 80, Labor Code of the Russian Federation:

By agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal.

Employee rights

The employee who wrote the application has the right to revoke it at any time within two weeks from the moment it is sent to the employer. And the employer does not have the right to refuse a person if there is no reason for it.

Such a basis is a call to a vacant position for an employee whose employment they have no right to refuse (for example, a disabled person).

If, after the expiration of the period specified in the application, neither the employer nor the employee has expressed a desire to terminate the employment relationship, then the application remains without consideration, and the employment contract remains in force.

Article 80, Labor Code of the Russian Federation:

If, upon expiration of the notice period for dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues.

How the final payment is made

The final amount of the calculation is influenced by several factors: whether the employee took annual paid leave, whether the employee was on sick leave, payments received for Last year. In this case, the year is taken into account as a calendar year: from January 1 to December 31.

Accounting when calculating the final benefit focuses on the time actually worked by a person.

For example, an employee took his allotted vacation and then decided to quit.

His salary is 12,000 rubles per month.

Average daily earnings are calculated based on the amounts a person has earned over the past two years.

For example, an employee received a total of 800,000 rubles.

In this case, his average daily earnings is: 800,000/730=1095 rubles.

During the month in which the dismissal occurs, the employee actually worked 8 days.

In this case, his salary when calculated will be 1095 * 8 = 8760 rubles.

If the employer has not yet made a payment for the last month worked, then the amount that the employer “owes” to the employee is added to the final payment amount.

Vacation compensation

If the employee did not take a legal vacation or did not take it in full, then to the amount of actual time worked compensation in cash equivalent is also added.

It is calculated based on a person's average daily earnings during the last calendar year.

Article 139, Labor Code of the Russian Federation:

Average daily earnings for vacation pay and compensation for unused vacations calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and 29.3 (the average monthly number of calendar days).

If an employee took the entire vacation, but did not finish the year, then during the calculation the amount of excessively accrued vacation funds will be legally withheld.

If in the past period a person was not on vacation and did not receive compensation for it, then this is a direct violation of labor laws.

Employer obligated to pay the employee any compensation due when calculating, regardless of the period in which the debt arose.

Taxation

Payments upon dismissal at one's own request are not severance pay, therefore are taxed in the prescribed form.

Income tax (income tax individuals) is charged on the entire final settlement amount. Therefore, if a person is entitled to a payment of 8,760 rubles, then in fact he will receive 8,760-13% = 7,621.2 rubles.

No severance pay or compensation is provided for dismissal on one's own initiative.

Bonuses and allowances

If the employment contract establishes additional payments in addition to wages, then the employer is obliged to pay them.

For example, if the employment contract stipulates quarterly bonuses, then the person is obliged to receive from the organization upon dismissal a calculation of the bonus for the time actually worked, even if the citizen worked only 1 day in the quarter.

Employer has no right to withhold any amounts if they are due to the employee on the basis of an employment contract. Thus, the required bonuses and coefficients must be applied for the actual time worked.

December 21, 2016, 20:44 Feb 11, 2019 22:54

In our country, the most popular method of stopping labor obligations (agreements) has been and remains dismissal on one’s own initiative. Required condition such a decision is a preliminary warning to the employer 14 days before the scheduled date. At the same time, it is important for the employee to receive all the payments due to him. Moreover, in one payment and in full.

What kind of compensation a resigning employee can expect and how long he will have to wait for it will be discussed further.

A little about the terms of payment upon dismissal.

Labor Code Russian Federation The deadline for full payment upon dismissal is clearly regulated, which states that payment of all due compensation must be made directly on the day of dismissal. And the day of dismissal traditionally coincides with the last working day of a person in his position. In the event that you are going to go on vacation and then immediately go on layoff, the payment is made on the last working day.

Sometimes there is a lot of uncertainty, embodied in questions about how to receive the required compensation for dismissal during sick leave or vacation. Indeed, in such a situation, a person is not present at the workplace on his, so to speak, last day. And, accordingly, the employer will not physically be able to fire him according to all the rules. Such cases occur when the application was submitted after the employee was on sick leave or on vacation. Similar issues are regulated by Article 140 of the Labor Code of the Russian Federation. It states that when the dismissed person was not at work on the appointed last working day, the calculation should be carried out the next day after he submits a written request to the employer about his desire to receive the due payments.

What benefits can a fired person expect?

In the traditional format, upon dismissal of one’s own free will, the employee is entitled to the following payments:

• actual salary for the time period worked, including the last working day;
• compensation for vacation that has not yet been used.

As for severance pay, it is official legislative framework it is not provided. Compensation of this kind can only be paid when it has been established by labor or collective agreement.
Earnings are calculated by the accounting department for the period actually worked. For this purpose, the salary rate, with all the required coefficients and allowances, is divided by the number of working days in the current month, and the resulting amount is multiplied by the number of days worked.

Conditions for calculating compensation for unearned vacation.

When an employee has not used his allotted leave before dismissal, he is entitled to compensation for it. It is calculated as follows:

1. If 11 months have passed since the previous vacation, then the amount of compensation payments will be issued in in full. In addition, payments for unused vacations in previous years should also be issued.
2. In cases where there is a large period of time left before the vacation before dismissal, compensation is calculated taking into account the duration of the employee’s vacation and his average daily earnings:

a) the duration of the vacation includes the number of paid vacations:

• main - 28 days;
• additional - for harmfulness, etc.

b) worked period - in accordance with the Rules on additional and next holidays, which have been used since 1930, when calculating vacation pay, the number of days worked is rounded to full months:

• if an employee worked only 15 calendar days in a regular month, he is not counted;
• if more than 15 days, then the month is rounded to the full.

c) average daily earnings are determined by the amount of salary accrued for the whole year, which is divided by 12 months and by the average number of days in a month (29.3).

Who can count on severance pay?

Along with voluntary dismissal, one cannot dream of paying severance pay, since only those workers who are forced to lose their jobs can count on them. However, there are exceptions in which an employee can obtain severance payments. This:

• mandatory emergency service in the army;
• loss of ability to work;
• refusal to change place of residence at the request of the employer, justified by the relocation of the company to another region;
• unwillingness to continue working subject to changes in the employment agreement.

An employee has the right to resign on his own initiative at any time by notifying the employer within the period established by law. What payments are due to an employee upon voluntary dismissal?

In this article we will look at:

• what payments an employee can expect upon dismissal of his own free will;
• within what time period the final payment must be made to the employee.

In accordance with Part 1 of Article 80 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), an employee has the right to terminate an employment contract by notifying the employer in writing. In connection with the termination of the employment relationship, the employer becomes obligated to make a final settlement with the employee in established by law deadlines.

When dismissing an employee at his own request, the employer is obliged to pay:

• wages for the entire period of work before dismissal, including bonuses, allowances and other payments (Articles 136, 140 of the Labor Code of the Russian Federation);
• monetary compensation for unused vacations (Article 127 of the Labor Code of the Russian Federation);
• other payments provided for by a collective or labor agreement, local acts of the employer (Articles 57, 178 of the Labor Code of the Russian Federation).

Thus, upon dismissal, the employee must receive all wages due, including incentive payments, bonuses and additional payments. He has the right to expect to receive compensation for all unused vacations, both annual and additional, for example, for irregular working hours.

If the employment or collective agreement provides for the payment of severance pay upon termination of the employment contract at the initiative of the employee, then the employer will pay it too. The possibility of establishing as a basis for payment of severance pay the dismissal of an employee at his own request is established by Part 4 of Art. 178 of the Labor Code of the Russian Federation, but it is difficult to say whether this has been implemented in practice.

In addition to the listed payments to an employee who terminates an employment relationship at his own request, no additional payments or compensations are provided for by law.

Terms of payments to an employee upon dismissal at his own request

By general rule, established by Part 5 of Art. 80 of the Labor Code of the Russian Federation, the employer is obliged to make final payments to the employee on the day of dismissal. But there are exceptions to all rules.

Firstly, if the employee did not work on the day of dismissal, then the amounts due to him must be paid no later than the next day after the dismissed employee submits a request for payment (Part 1 of Article 140 of the Labor Code of the Russian Federation).

Secondly, if there is a dispute between the employee and the employer about the amount of amounts due to the employee upon dismissal, only the undisputed part is paid on the day of dismissal (Part 2 of Article 140 of the Labor Code of the Russian Federation). The rest of the amount must be paid after its actual determination.

Summarizing
As a general rule, payments to an employee are made on the last day of work. The employee must receive final payment of wages and compensation for unused vacation.