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 dismissal? at will?
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 employment contract at the initiative of the employee, 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 labor relations at your 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.
To sum it up
As a general rule, payments to an employee are made on the last day of work. It is mandatory that the employee receives final payment of wages and compensation for unused vacation.
The employer is obliged to make all payments to the employee upon dismissal at his own request on the day of dismissal.
Dismissal at will is the most common basis for terminating an employment contract. This is the least troublesome and most convenient base.
An employee has the right to resign of his own free will at any time, but by notifying the employer 2 weeks in advance. If the employee is on probationary period, then it is enough to notify the employer 3 calendar days in advance.
The employer's notification of the employee's desire to terminate the employment relationship is the employee's statement with a request to dismiss him at his own request. The application must indicate the date from which the employee will no longer return to work.
The wording of the application should look like this: “I ask you to dismiss me of my own free will on April 15.” That is, on April 15, this employee no longer goes to work, and his last working day is April 14. The employee must submit an application to the employer no later than April 1.
Based on this application, the employer issues a dismissal order and makes a full settlement with the employee.
What payments are due upon voluntary dismissal?
The employer is obliged to make a full payment to the employee on the day of dismissal. As a rule, the day of dismissal and the last working day coincide. Therefore, all payments are made on the last working day.
If these dates do not coincide, then payments upon dismissal of one's own free will are made upon the written request of the employee on the next day after receipt of this request.
The employer is obliged to pay the employee:
- wages for the time actually worked, including the last working day;
- compensation for unused vacation;
- severance pay, if it is provided for by a collective or labor agreement.
Wages are paid for working days actually worked in the month of dismissal. For example, an employee quits on May 25, 2018. His salary is 42,400 rubles. According to the production calendar, May has 19 working days. The employee worked 14 working days. His salary for May will be equal to 42,400 / 19 * 14 = 31,242.10 rubles.
Compensation for unused vacation is paid along with wages. For example, on the day of dismissal, the employee had not been on vacation for 6 months and 17 days. The rule is to round to the nearest full month. Since the number of days exceeds half a month, you need to round up. On the day of dismissal, the employee had not been on vacation for 7 months. Therefore, he has 28 / 12 * 7 = 16 days of vacation.
His salary for a month of work is 45,600 rubles. This employee will receive compensation for unused vacation in the amount of 45,600 / 29.3 * 16 = 24,901 rubles.
Payment of compensation for voluntary dismissal is made only if it is specified in the collective or employment agreement with the employee. The amount of such benefits is usually established by the employer and is not discussed with the employee when concluding an employment contract.
If the provision on severance pay is enshrined in the collective agreement, then the amount is discussed at a meeting of representatives of the employer and employees, and is reached through agreement.
An employee can quit without working for 2 weeks if he agrees with the employer. If such an agreement is reached, the employee may not go to work the very next working day. In this case, all payments must be made today.
Payments upon dismissal at one's own request include wages for the period worked and vacation pay.
The employee must allow the employer time to find a replacement so that the business is not damaged. According to the law of the Labor Code of the Russian Federation, Article 80 Part 1 states that it is necessary to warn about the severance of labor relations 14 working days in advance.
Each employee can claim various social benefits from the employer, subject to official employment. Regardless of whether an employee quits or continues to work, he is required to pay:
- earnings for the period worked;
- sick leave in case of loss of ability to work;
- vacation pay if you decide to take a scheduled vacation;
- bonuses for certain merits, if they are reflected in the local act.
For short-term performance of duties by contractors and performers of various services after concluding civil contracts, no additional social package is provided. The scope of work is completed, the agreement is terminated, the head of the enterprise is paid only for services performed, repairs of premises or mechanisms.
Official registration of employment contracts allows you to:
- take advantage of vacation after 6 months of service;
- receive money for absence from work during illness;
- use employee privileges provided by the Labor Code of the Russian Federation and based on local regulations.
The Labor Code of the Russian Federation obliges production managers to pay hired personnel upon their dismissal for all vacation periods that the employee did not use, as well as for days worked.
How does the reason for dismissal affect the calculation?
Personal desire is the most common reason to say goodbye to a job that does not satisfy the employee. In this case he gets due payments in the form of salary and compensation for unused . Sometimes a situation arises when an employee took a certain amount of time off in advance, received vacation pay and decided to quit. Article 138 of the Labor Code of the Russian Federation states that the employer can demand a refund of only 20% of the total accruals.
If his earnings do not allow him to repay the debt, he has the right to take:
- Withhold the amount from accruals with the consent of the employee.
- Demand repayment of the debt with your own cash.
- Ignore debt.
The Labor Code of the Russian Federation in Article 77 clause 1 introduces the procedure for dismissal in the event of a mutual agreement between the boss and the subordinate. In this case, additional payments are not provided, except for the calculation in the general manner.
An exception may be the terms of the employment contract if they establish additional remuneration for resigning workers.
Legislators have a special attitude towards staff who have been laid off; they are entitled to severance pay.
Features of this moment:
- payments are made in the amount of the average monthly salary for 2 months;
- for seasonal workers, payment is made 14 working days in advance;
- workers in difficult northern conditions are given benefits for a 3-month period;
- overpayment for advance leave is non-refundable.
The Labor Code of the Russian Federation in Article 307 emphasizes that individual entrepreneurs can carry out layoffs of employees based on the provisions stipulated in employment contracts. If there are no special conditions, no additional payment will be made.
The reason affects the amount of compensation payments. According to the Labor Code of the Russian Federation and Article 178, 2-week average earnings are provided to those dismissed in the event of:
- there is no vacancy, there is no desire or opportunity to move to another position;
- poor health;
- receiving a summons to the army for military service;
- the position was taken by the employee after returning from maternity leave;
- changes made in the requirements and conditions of the employment contract.
3 months' salary is given to management officials if they are dismissed due to the transfer of the enterprise to another owner.
How to calculate salary in practice
Payment for labor includes not only salary, tariff work rates, but also all bonuses and other allowances specified in the contract, local regulations.
In this case, the reason for dismissal on one’s own initiative does not allow payment of severance pay. The amount of earnings depends on the accepted payment system. For time-based work, the salary and actual days worked are taken into account.
Let's say accountant I.A. Govorova. wrote a statement in which she asked to be dismissed from August 13 at her own request. She worked for 8 days, with a salary of 30,000 rubles. If there are 23 working days in August, Govorova is supposed to pay:
30 000: 23 = 1 304.34
1,304.34 x 8 = 10,434.72
Under the piecework system, days worked are not included in the calculation of wages; what matters here is how much work the worker will do. In construction, this could be the squaring of wall decoration, a turner's work, or manufactured parts. If the finisher processed 100 sq.m. at a cost of 30 rubles. for each unit:
Production activities can be carried out on a piece-rate, bonus or bonus basis. Working conditions and payment are prescribed in contracts; after receiving the dismissal order and the time sheet with the marked days worked, the accountant performs calculations for the dismissed employees.
In what order is compensation paid?
When paying vacation pay, an employee of the payroll department takes into account the period of unused time as the required rest at the time of dismissal.
An employee can use vacation by writing in the application “with subsequent dismissal.” If he falls ill during this time, sick leave will be paid, but the period will not be extended. According to the standard, in an ordinary enterprise, without special working conditions, workers are allowed to rest for 28 days.
This means that each month worked contains:
Provided that more than 15 days are worked in a month, it is counted as a whole month; if the value is less, it is not taken into account.
Using the example of accountant Govorova, compensation payments are not due for April. She took all the time off over the past year completely.
3 x 2.33 = 6.99 or 7 vacation days
The next step is to find out the average daily earnings. If we take into account that the salary did not change, there were no bonuses, and according to the Labor Code of the Russian Federation, a working month is equal to 29.3 days.
30 000: 29.3 = 1023.89
1023.89 x 7 = 7167.23
It should be taken into account in average salary not included:
- payment of one-time financial assistance;
- compensation payments for transport costs, food;
- tuition reimbursement;
- allowance for recreational activities;
- subsidies for utilities, assistance for child support.
How to register as unemployed after dismissal
Various situations arise that affect the dismissal. It is not always possible to find a good position right away, free space, satisfactory in terms of salary and conditions. You have to turn to advertisements, go to interviews, when you can’t resolve the issue, people come to the labor exchange.
You can officially obtain unemployed status and register with the employment center in the following cases:
- the person does not work anywhere, he has no sources of income;
- the citizen is actively searching for jobs and is ready to work at any time.
The responsibilities of employment exchange employees include the following social guarantees:
- assistance in finding a job;
- material support in the form of benefits;
- Offers for retraining and advanced training are provided.
To register you will need the following documents:
- ID card;
- extract from work book with a mark about last place work;
- certificate of earnings for 3 months;
- copies of diplomas, certificates and certificates of education.
Based on documentary evidence, a search is made for the specialty most suitable for the applicant. After registration at the employment center, the unemployed person will have to fulfill all the requirements of this institution, provided that he is registered no later than a month after dismissal.
The main steps you need to go through:
- Periodically, according to the schedule established by the institution, you will need to come and check in to confirm your unemployed status. A pass means first a reduction in benefits; if the violations do not stop, the person is deprived of material support.
- The job search agency performs the duties assigned to them. Once the employer makes a request, it is forwarded to the applicant. After this, you will have to visit the company for an interview.
- Citizens who quit on their own initiative are given a year to decide on a career and choose one of the proposed options. First, vacancies will be received based on education and skill level. If within a year none of the proposals are satisfied, the candidate will be considered as an employee without professional skills.
They will not be registered as unemployed in the following cases:
- the dismissed person works part-time;
- the presence of additional sources of income has been proven;
- an individual entrepreneurship has been opened in the name of the applicant;
- minors and ;
- citizen after imprisonment in a correctional institution.
If an unemployed person refuses to register various organizations twice, he is excluded from the exchange lists and payments are stopped.
How much benefits are paid to the unemployed?
When a citizen, after registering with the central bank, visits it on schedule, responds to all interviews, but does not like it, for various reasons, none of the proposals means that he will face a gradual but regular decrease in material support.
In fact, labor exchanges can only pay one person for 2 years. If he gets a job at a company and then quits again, he will be registered again and his state support will be extended for another year.
Initially, payments are assigned according to the average earnings indicated in certificate 2 of the personal income tax. The sample is based on the last 3 months.
The reduction occurs in the following order:
- 3 first months – 75%;
- 4 subsequent – 60%;
- until he finds a job – 45%.
There are restrictions; the benefit cannot be less than 850 rubles. and more than 4,900 rubles.
It’s easy to lose your job, you just have to write in the application: “I ask you to resign of your own free will.” Sometimes it is very difficult to find a new one; in order to live with dignity, you may have to change your specialty. In this case, many citizens were helped morally and financially by the employment service. In the next bill, the government decides how to increase the amount of benefits for the unemployed to the minimum monthly wage of each region.
About labor holidays and compensation payments upon dismissal in the following video:
Aug 4, 2018 Help manual
You can ask any question below
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 regulatory 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.
Download and print for freeAn 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 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 legal leave or did not take it in full, then to the amount of actual time worked compensation in monetary terms 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 are calculated for the last 12 calendar months by dividing the amount accrued wages by 12 and by 29.3 (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 legislation.
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 
When severing employment relations with an employee, the employer is obliged to calculate and pay him compensation for the remaining unused vacation days, as well as make the final payment upon dismissal, that is, pay wages for the period of the month that the employee worked. These calculations must be made in compliance with a certain order. In addition, in some cases, upon termination of an employment contract, the employee is assigned additional payments. How to make calculations upon dismissal will be discussed in our article.
Calculation upon dismissal depending on the grounds for termination of the employment contract
The above-mentioned compensation for unused vacation and calculation of wages upon dismissal based on the results of the worked part of the month are standard payments due to the employee, regardless of the grounds for termination. labor agreement.
Let us remind you that in most situations, for each month worked, the employee is accrued 2.33 days of vacation. In total, there are 28 days of rest per year. In some industries, based on the specifics of the activity, or based on the provisions of the collective agreement in a particular organization, the number of vacation days increases. Replace vacation days Cash compensation cannot be provided while the employee is working. But if for some reason he does not take his vacation and quits, then the employer is obliged to pay him for all the remaining unspent days.
If the dismissal occurs at the initiative of the employee on the basis of paragraph 3 of part one of Article 77 Labor Code, then upon dismissal, the employee must receive payment for the time worked and compensation for unused vacation. These are the final payments to the employee. True, the collective agreement or other local regulations in the organization may again provide additional compensation for various types of dismissals. Of course, this may not be a particular or most common case, but if such settlements are provided upon dismissal, the employer is obliged to make them in favor of the employee. For example, this could be one-time financial assistance when leaving at your own request upon retirement.
Another reason for terminating an employment relationship is an agreement between the parties. A similar option is provided for in paragraph 1 of part 1 of Article 77 of the Labor Code.
In this case, in addition to the standard payments to the employee upon dismissal, he is entitled to an additional amount determined by a joint decision with the employer. Also, the amount of such additional payment may be influenced by local regulations adopted by the organization.
Payments upon dismissal: severance pay
An employee's calculation upon dismissal may include another element of payment - severance pay. Depending on the situation, its size may correspond to the average monthly earnings of the dismissed employee or the average two-week earnings.
Thus, payments upon dismissal at the initiative of the employer include an average monthly benefit to an employee with whom the employment relationship is severed due to liquidation or staff reduction. The settlement money upon dismissal in this case also includes the average monthly earnings retained by the employee for a period of up to two months (and in some situations, up to three months) for the period of employment. However, it is reduced by the amount of severance pay paid.
Severance pay in the amount of two weeks' earnings is paid to those employees who refused to be transferred to work in another area due to the employer's move (clause 9, part 1, article 77 of the Labor Code of the Russian Federation), or refused to be transferred to another job for health reasons (clause 8 part 1 of article 77 of the Labor Code of the Russian Federation), or were found incapable of labor activity in accordance with the medical report (clause 5, part 1, article 83 of the Labor Code of the Russian Federation). A similar procedure for calculating upon dismissal with payment of severance pay of the same amount applies to employees called up for military service or those sent to alternative civil service, workers who rejected a job offer due to changes in the terms of the employment agreement related to new organizational or technological working conditions (clause 7, part 1, article 77 of the Labor Code of the Russian Federation), as well as in a number of other situations.
Deadlines for full payment upon dismissal
Article 140 of the Labor Code contains the rule that payments as part of the calculation upon dismissal must be made up to and including the last working day of the employee.
If for some reason the employee was not present at the workplace on the last day, and physically could not receive the amounts due to him upon dismissal, then the employer is obliged to pay them at the first request of the resigned employee. A delay in calculating salary upon dismissal, as well as other amounts due to the employee, leads to the need to accrue additional compensation to the employee in the amount of the debt. It is calculated as one hundred and fiftieth of the current value at the moment in question. key rate for each day of delay from the amount owed.
Bonus upon dismissal
Some organizations practice using a calculation scheme, according to which the employee is entitled to a certain salary and bonus based on the results of the month worked and, for example, the amount of work completed during it. As a rule, performance evaluation in similar cases is assessed at the end of the month. How to pay an employee when leaving in the middle of the month, if the company has exactly this procedure for paying the workforce?
Of course, the dismissal procedure and settlement of regular payments within the established salary, as well as compensation provided for in the Labor Code, must be completed on the employee’s last working day. However, the bonus part can be paid on the day when this is established by the internal regulations of the organization, that is, when the billing month is closed and the results of the work performed can be assessed. Simply put, the requirements of Article 140 of the Labor Code do not apply to how the bonus part of payments to the resigning employee is calculated upon dismissal.