When is severance pay paid upon dismissal? What period is included in the calculation? Benefits and dismissal by agreement of the parties

Official employment allows the employee and employer to defend their rights at the legal level in controversial situations. This could not be more relevant right now, when many companies are beginning to act in opposition to the Labor Code of the Russian Federation. They try to optimize their expenses due to ignorance of employee rights.

The end of 2014 and the beginning of 2015 turned out to be difficult for Russia. Especially in the labor market. Many companies have decided to reduce staff or eliminate operations altogether. Employees of such organizations were laid off and lost their bonus component wages. Whatever measures the company takes, you need to know what payments you are entitled to in the event of a layoff or dismissal. This will protect you and allow you to legally claim the amounts due. Please note that we are talking about reduction or dismissal at the request and desire of your employer.

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No matter how wonderful a relationship you have, if you are asked to leave of your own free will– this is a violation. There is no need to write any statements. Notice of your layoff must be provided against a signature, which will indicate the timing of your dismissal and the reason for it. And you must receive this paper at least 2 months before the specified date.

What is severance pay

The short answer to this question is this: severance pay- this is the amount in monetary equivalent that the employee will receive at the time of termination of the employment contract with the employer, at the initiative of the latter, in addition to all basic payments.

Such a payment is claimed by employees who will be dismissed due to a reduction in the company's staff or its liquidation.

Points to remember:

1. At the time of dismissal, the company is obliged to calculate the average monthly salary and pay it.
2. During the period of employment, the dismissed person retains the right to receive an average monthly salary from the company, but no more than 2 months.

Legislative framework

TK Russian Federation prescribed at the legislative level the legality of such payments. And if the employer notifies you of a layoff, then referring to Article 178 of the Labor Code, namely:

• the enterprise is liquidated;
• Clause 1 of Article 81 of the Labor Code of the Russian Federation – the number of employees is reduced, you apply for additional benefits.

It turns out that the employer pays you for the next month after dismissal, because you lost your earnings on his initiative.

It was not possible to find a suitable position within 2 months; you have the right to receive another payment at the end of the second month of non-employment.

Grounds for payment of severance pay

Protecting a citizen of the Russian Federation from an unscrupulous employer, the Labor Code specifically prescribed all the parameters for paying benefits if the company wants to reduce staff or stop its activities. The reasons may be different: a financial crisis, an unfavorable company environment or other factors.

If the employee conscientiously fulfills his obligations to the company, then the company has the right to be held responsible for the sudden termination and impossibility of employees receiving wages. This has nothing to do with employees who violate company regulations or who decide to independently change their profession or place of work.

1. The main basis for payment of benefits is the liquidation of the enterprise. That is, the company no longer plans to operate, and all employees are laid off.
2. Also, the company, experiencing difficulties, may reduce staff. In this case, the employer is first obliged to offer the employee another place of work that is suitable for the health and qualifications of the worker. If there are no such places, then notify the employee of the layoff 2 months in advance.

Payment amount

What amount of payment can we talk about if your company is liquidated or you are laid off due to the inability to pay for your work any more?

So, on the day of dismissal you receive in your hands:

1. Salary or payroll for the period worked.
2. Compensation for unused vacation.
3. One average monthly salary.

Next, you go looking for work and contact the labor exchange for help in finding employment. If at the time of the second month you were unable to find a job, then the company pays you your recorded average monthly earnings.

You can get it a third time if you contact the employment service within 14 days, but you will not be able to find a job within three months (90 days) after dismissal. This payment will be made only by decision of the employment authority. Service measures and rules must be followed to receive benefits on time.

Average monthly earnings are calculated based on the last year of work in the organization.

Severance pay

The loss of your job was due to the fault of the employer; you, as an employee, may experience difficulties due to an unexpected lack of funds, so the organization supports you financially for at least two months, paying your average monthly salary. We will consider options for paying benefits or in case of dismissal for other reasons.

Upon dismissal

The loss of a job by an employee can occur not only due to the liquidation of the enterprise or due to a decrease in the number of employees. However, the payment amount differs.

A benefit equal to 2 weeks' average earnings is received by a person who:

• or work. Moreover, it does not correspond to his activities, does not suit him for medical reasons, or the employer does not have an appropriate staffing position at all. This payment is made in accordance with clause 8, part 1, article 77 of the Labor Code of the Russian Federation.
• You are drafted into the army or sent to alternative civil service. This is regulated by clause 1, part 1, article 83 of the Labor Code of the Russian Federation.
• If the employee who previously performed your work returns, in accordance with clause 2, part 1, article 83 of the Labor Code of the Russian Federation, you also apply for a two-week allowance.
• The company changes location, moving to a completely different area, you can refuse the move and receive compensation, this is stated in clause 9, part 1 of article 77.
• Your health condition no longer allows you to perform work and this is confirmed by a medical certificate, in in this case It is worth referring to clause 5, part 1, article 83 of the Labor Code of the Russian Federation.
• If there is a significant change in the terms of the employment contract that was previously signed by you and your employer, you can refuse work and receive payment; Article 77, paragraph 7, part 1 clarifies these conditions.
• Your activities are seasonal. As soon as the work is completed, you are paid an additional benefit in the amount of two weeks' earnings in accordance with Article 296 of the Labor Code of the Russian Federation.

When contracting

The employee claims to receive benefits in the amount of one average monthly salary as compensation for the next month after dismissal. This applies to reductions due to liquidation and bankruptcy of an enterprise, and to staff reductions. This amount is strictly fixed by the Labor Code of the Russian Federation. There is also the opportunity to receive an average monthly benefit if you do not find a job within 2 months.

Certain categories of workers

Eat non-standard cases which need to be considered individually.

1. If your employment contract was signed for a period of up to two months, then upon its termination, payments of this kind are not provided to you. But if this was discussed in advance with the employer, recorded in a collective or labor agreement, or is another federal law, then you should rely on Article 292 of the Labor Code of the Russian Federation.
2. For employees who are employed in the Far North and areas equivalent to it, in case of dismissal from the organization for any reason (liquidation or reduction in the number of staff), an average monthly benefit is also paid. Additionally, the employee can apply for such benefits no more than 2 more times, that is, not to exceed 3 months from the date of termination of work.

Rules and payment procedure

Legally, an employee who does not violate the rules can receive severance pay. labor relations and maintains discipline. Moreover, if he decides to resign due to own initiative or is on – such payment is not made.

Has your relationship with your employer reached a dead end, or have you reached an agreement to quit on mutually beneficial terms? No compensation is paid, but you can negotiate it individually with the head of the company.

Some important points that relate to the benefit:

• such a benefit is not subject to tax for the individual. This means that 13% will not be withheld from him;
• all payments, including severance pay, are made on the last working day.

How can you find out your average monthly earnings? In this case, the period of 12 months before the date of expected dismissal is taken and the entire salary is considered. In this case, the accounting does not include sick leave, vacation pay, etc. The amount received is divided by the number of days worked per year. Next, this resulting equivalent is multiplied by the number of working days in the month that follows the date of dismissal. This results in the amount of compensation that the employee is claiming.

Briefly about the important things. You have received notice of dismissal due to staff reduction or liquidation of the organization. Don't panic. You have at least 2 months to complete your business, search new job. You should not quit right away, otherwise you risk not receiving the compensation you are owed.

On the day of dismissal, they will close in front of you:

• wage arrears;
• will pay for days of unused vacation;
• will be paid the average monthly salary.

After this, start looking for a job; if you don’t find one within two months after your dismissal, the organization will pay you again.

Severance pay upon layoffis a compensation payment from an enterprise to an employee. Calculation of severance pay during layoffs, as well as other compensation payments, is based on the employee’s average salary, and due to some features of its calculation, the employee may lose some of the money allotted to him.

What is considered redundancy and how does it happen?

Staff reduction is a measure taken by the management of an organization to optimize its labor costs. Staff reduction may be associated with a reduction in the volume of activities or optimization of the staff structure. It is also possible that layoffs are associated with the termination of the entrepreneur’s activities or the liquidation of a legal entity.

That's why Labor Code The Russian Federation provides for 2 options for dismissal that correspond to the concept of staff reduction: reduction in headcount (staff) and complete liquidation business with the dismissal of all employees. Both categories of layoffs have equal guarantees regarding the payment of severance pay.

IMPORTANT! Before dismissal due to staff reduction, the employer must: offer employee all available vacancies in the company.

Employees dismissed due to the liquidation of the organization, termination of activities individual entrepreneur or staff reduction warn no later than 2 months before dismissal.

IMPORTANT! From written consent The employer has the right to dismiss the employee before a two-month period has passed from the date of notification of the impending dismissal.

On the last working day, the employer makes calculations, pays the employee wages for the time worked, compensation (if any) for unused vacation and severance pay in case of layoff, the amount of which is determined in accordance with the law or specified in the labor (collective) agreement.

Calculation of severance pay for staff reduction in 2016-2017

Severance pay to employees for whom the employer is the main workplace is paid in the event of layoffs in an amount equal to one average monthly salary. Employees employed on a part-time basis are not paid severance pay upon layoff, since they do not lose their main job.

Average monthly earnings are calculated in accordance with the legislation of the Russian Federation. Issues of its calculation are regulated by the Regulations on the specifics of the procedure for calculating average wages, which was approved by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922.

According to this provision, the average monthly earnings are calculated on the basis of the amounts of all payments (including bonuses) received for the 12-month period preceding the calculation period, which are provided for by the enterprise’s remuneration system, in proportion to the amount of time worked by the employee.

The amounts taken into account when calculating average earnings do not include incentive payments of a material nature that are not related to wages (for example, travel or compensation for rent, tuition and other material assistance).

When calculating average earnings, sick leave payments, vacation pay, and cases where the employee retained the average salary in accordance with labor legislation, but did not actually perform work, are also not taken into account. Accordingly, the period during which the employee did not fulfill his work duties is not taken into account: time of incapacity for work, vacation, downtime, and so on.

IMPORTANT! If an employee is dismissed before the end of a 2-month period from the date of notification of the upcoming reduction in staff or liquidation of the organization, he is paid additional compensation to that determined by law - in the amount of average monthly earnings calculated for the period that the employee had to work before the expiration of 2 months.

How to calculate the amount of severance pay in the event of a layoff yourself

An independent calculation of severance pay may be required if the employee believes that he was paid incorrectly. In this case, the employee can make an independent calculation to verify the correctness of the accruals made. It is only important to remember that a collective or individual employment contract may establish a special procedure for calculating compensation payments, a different multiple of average earnings and a period for calculating average earnings.

In order to calculate the amount of severance pay yourself, you must have on hand all pay slips for the last 12 calendar months. They indicate payments made during this period, broken down by type of remuneration, as well as time worked in working days, hours or natural units - depending on what salary the employee has.

All payments that are taken into account for the purpose of calculating compensation must be summed up and divided by the number of days actually worked in the period. This is how the average daily earnings are determined.

Subsequently, the average daily earnings must be multiplied by the number of working days in the month that follows the date of dismissal. The amount received will be the severance pay guaranteed by law. If the enterprise or individually for the employee has established a different multiple of severance pay relative to average earnings, the calculation will be different.

IMPORTANT! Severance pay for layoffs is not subject to personal income tax and is not accrued insurance premiums, but only on condition that the amount of severance pay does not exceed 3 times the amount of earnings. The portion of the benefit exceeding this limit is subject to both tax and contributions to extra-budgetary funds.

Due to the fact that average earnings are calculated on the basis of working days, and not calendar days, in months in which the number of working days is much less than the average (January, May), severance pay is significantly less than in others.

Calculation of severance pay in case of layoffs for certain categories of employees

In addition to time-based wages, a piece-rate payment system can be established in production. In this case, the calculation of average earnings and compensation payments is made in the general manner.

However, if the employee’s work is paid in proportion to the time worked, that is, the so-called summarized accounting of working hours is applied to the employee, the calculation of severance pay is based on the average earnings for 1 hour of work. In this case, the number of hours for calculating severance pay when an employee is laid off is determined according to the schedule that is established for him for the month beginning after the day of dismissal.

Some categories of workers are paid severance pay in larger size. For example, civil servants are paid severance pay in the amount of four times the average monthly salary, and judges - no less than six times.

At the same time, employees engaged in seasonal work are paid severance pay only in the amount of average earnings for 2 weeks.

Additional guarantees for laid-off employees

In addition to severance pay upon dismissal due to liquidation of the organization and staff reduction, the employer pays the dismissed employee an average monthly salary until the employee gets a job (severance pay is counted in this case), but not more than 2 months in the general case. This period can be increased to 3 months if the dismissed employee registered with the employment service within 2 weeks after the dismissal, but was not employed.

IMPORTANT! For workers in the Far North, the period of maintaining wages until employment can be increased by decision of the employment service to 6 months.

In addition, the laid-off employee can contact former employer if within one month from the date of termination of the employment relationship he lost his ability to work due to injury or illness. In this case, according to social insurance legislation, the employee has the right to present sick leave to the employer for payment.

Pregnant employees and employees with young children who are laid off during the liquidation of an enterprise find themselves in a less protected position. If parental leave began before the liquidation of the enterprise, then the amount of benefits is calculated according to the general procedure for working women (40% of wages). However, if the leave begins after the date of liquidation of the enterprise, the benefit is paid in the amount guaranteed by the state (this is a fixed amount, and it may be lower). To calculate such benefits, a woman will need to contact the social insurance authorities.

Severance pay upon dismissal is subject to accrual and payment to employees in the event of termination of employment on certain grounds. The possible amount of dismissal benefits can be taken into account when drawing up an employment contract.

What determines the amount of severance pay upon dismissal?

Upon termination of an employment contract with employees, they are paid amounts consisting of final payment (wages), compensation for unused vacation, as well as other payments, which include severance pay upon dismissal. True, it is not required in all cases. Thus, it is not accrued if the termination of the employment relationship occurred at the initiative of the employee, as well as if he committed actions that entailed disciplinary liability.

It is legally established that severance pay upon dismissal must be paid in the following cases:

1. In the amount of up to 3 average monthly earnings, if the dismissal occurred at the initiative of the employer during the liquidation of the organization or due to staff reduction.
2. Within 2 weeks of average earnings, when the dismissal is due to the fact that the employee does not want to change his position and move to another job, despite medical warnings, as well as in connection with a call for military service, reinstatement of the specialist who previously performed these duties. A benefit in this amount is also accrued in case of refusal to continue to perform official functions due to a change in the terms of the contract or the location of the workplace.
3. In 3 times the average salary for employees in management positions, if their dismissal occurs on the initiative of the new owners of the enterprise.

The amount of the listed payments may be increased, but this must be stipulated in local regulations. The reasons for payments may also be expanded due to internal politics organizations.

The procedure for calculating severance pay upon dismissal

In the event of liquidation of an organization or a reduction in staff, the calculation is made based on the determination of average earnings in accordance with Art. 139 Labor Code of the Russian Federation.

Average earnings are the ratio of the amount of actual accrued wages for the last 12 months to the number of days worked. The resulting value must be multiplied by the number of working days in the first month after dismissal.

Order calculation average earnings V others situations given V articles :

According to the norms of the Labor Code of the Russian Federation, the period for employment of a dismissed employee is recognized as a number of calendar days equal to a month, starting from the day following the dismissal. Weekends and holidays are not taken into account. If the employee was dismissed on 07/08/2017, then the first month for possible employment lasts from 07/09/2017 to 08/08/2017, and the second - from 08/09/2017 to 09/08/2017. Severance pay is paid for all working days in these periods.

Example

A.V. Petrov was fired due to staff reduction. His average monthly earnings over the last 12 months are 36,513.95 rubles. In addition to wages and compensation payments, upon dismissal he will be entitled to a severance pay in this amount, which can be doubled (or tripled) if A. V. Petrov cannot find a new job within 2 (or 3) months after dismissal.

Personal income tax on severance pay upon dismissal

All payments accrued and received by an individual upon dismissal are classified as income. Personal income tax must be withheld from accrued amounts (compensation for vacation, calculations for the period worked). However, an exception is made for severance pay in this case. According to paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, such payments upon dismissal do not fall into the taxable personal income tax base if they do not exceed the amount established by law. But for amounts accrued in excess of the established limit, tax will have to be calculated.

Additional information on this issue can be obtained from the article.

The position of the judges is in the material .

In cases of dismissal by agreement of the parties, tax is also withheld only to the extent of the excess of the legally established limits of severance pay.

Severance pay for redundancy

If a situation arises at the enterprise in which staff reductions cannot be avoided, laid-off employees can count on payment of severance pay upon dismissal in the amount of average monthly earnings. In addition, they are entitled to payment in the same amount for the duration of their employment.

More details study given question Can V material « Compensation for dismissal By reduction states - 2017 ».

In exceptional cases, by decision of the employment center, the amount of average earnings can be paid for the 3rd month after termination of the contract. But for this, the employee needs to register with the labor exchange no later than 2 weeks after dismissal.

In order for the employee to quickly find a new job, the employer is obliged to notify employees and the employment center of the upcoming layoff at least 2 months before dismissal.

Severance pay upon dismissal by agreement of the parties

Often, the interested parties, the employee and the employer, manage to agree on the termination of the employment contract. Dismissal for this reason is possible at any time and is accompanied by a procedure for signing an agreement.

The terms of dismissal must be specified in the agreement. This includes determining the amount of severance payments if the parties mutually agree on this.

There are no statutory payments to the employee in this case. Calculation severance pay upon dismissal is carried out only in cases where such conditions are specified in the agreement or contracts - labor and collective.

Results

The dismissal of employees is accompanied by the payment of amounts provided by law. Their size depends on the grounds for dismissal and other circumstances established by internal documents regarding the amount of severance payments.

Severance pay is a compensation payment that is intended to support to some extent material well-being a dismissed citizen for the period of absence from work. The legislator makes a calculation not to leave a person to fend for himself until he finds another job. The Labor Code of the Russian Federation regulates in detail the procedure for calculating payments, because such compensation is not due to every person dismissed, but only to those whose reason for dismissal is regarded as forced.

Who is paid severance pay upon dismissal?

The legal grounds for calculating compensation payments are contained in Art. 178 Labor Code of the Russian Federation.

Table: types of payments under Art. 178 TK

Conditions for calculating average monthly earnings for a dismissed employee

On the day of dismissal on the grounds specified in the law, the employee is paid one average monthly salary. If a citizen has not found a job within a two-month period, he is paid the average monthly salary for the second month following the moment of termination of the employment contract. The same additional payment for the third month is received by those who have not found a job after three months, and also provided a document from the state employment center (hereinafter referred to as the State Employment Center) with a decision to be declared unemployed. The legal basis for such payments are the circumstances set out in paragraphs 1 and 2 of Art. 81 of the Labor Code of the Russian Federation, as well as in certain paragraphs of Article 77 of the Labor Code of the Russian Federation.

Conditions for payment of two weeks' earnings

Financial assistance in the amount of two weeks' average monthly salary is calculated based on the requirements of Art. 77 of the Labor Code of the Russian Federation in the following cases:

• if there are no available jobs on staff that would suit the employee and do not contradict medical indications his state of health;
• if the employee refuses to move to a new location of the enterprise;
• disagreement with new working conditions.

The basis for calculating payments are also certain paragraphs of Art. 83, that is, the following circumstances:

• conscription armed forces or to alternative service.
• return to position of a previously dismissed employee by decision of a court or other authorized body.
• loss of ability to work by an employee, as evidenced by relevant documents issued by a medical institution.

Special cases of calculating severance pay

Labor legislation contains standards for specific isolated cases in which severance pay is calculated in a certain special order:

1. If the employment relationship is terminated in violation of labor laws on the part of the employer, a benefit in the amount of average monthly earnings is paid.
2. Compensation in the amount of three months' earnings is due to a manager, deputy or accountant if there is a change of owner at the enterprise.
3. Such compensation is also given to the manager upon his dismissal at the initiative of the owner, even if the employee did not commit any guilty actions.
4. For employees of enterprises in the Far North, the Labor Code of the Russian Federation establishes the payment of benefits for three months. If the State Employment Center makes a decision to recognize a citizen as unemployed, the payment must be made within six months.
5. A two-week payment is made to employees who perform seasonal work when the number of employees is reduced or when a business is closed.

Sometimes the decision on the payment of material compensation is entrusted to management, and the basis is mutual agreements fixed in the contract:

• if the employment contract is concluded for a short period of time (for example, two months);
• in case of attraction hired workers to work for an individual entrepreneur;
• if the employee is a minister of a specific organization (for example, religious).

Cases when severance pay is not due

Based on the above, compensation is not issued as a general rule, but is accrued only in the presence of circumstances specified by law. In particular, an employee is not entitled to severance pay in the following situations:

• if he failed to cope with his duties during the probationary period;
• if dismissal occurs by agreement of the parties or at the request of a full-time employee.
• if there is a violation of labor legislation by the employee.

If an employee who belongs to vulnerable categories, separately stipulated by law in most cases, is subject to dismissal (pensioners, persons with disabilities, pregnant women, single parents, etc.), this in itself does not give him the right to receive severance pay. In such cases, employees receive payment according to general rules.

Registration of severance pay upon termination of an employment contract

The procedure begins with drawing up an order indicating the reason for termination labor contract and the amount of compensation payments.

When reducing the number of employees, the following actions are taken:

1. Preparation and approval of a new staffing table.
2. Drawing up a list of employees who are subject to reduction in the sequence corresponding to the preemptive right to retain their job.
3. Two months before the termination of the employment agreement, employees are given a notice of layoffs.
4. A proposal to transfer to another position or notify employees of the absence of such jobs is communicated to employees in writing.
5. Notification in writing of the upcoming layoff civil service employment.
6. Issues regarding layoffs are coordinated with the trade union body of the enterprise.

To receive severance pay for the second and third months upon dismissal due to downsizing or closure of an enterprise, the employee presents the following documents to the employer:

• after the expiration of the second month - work book, which will serve as confirmation of unemployment (absence of a record of employment);
• after the third month - a work book and a certificate issued state center employment.

How is severance pay calculated upon dismissal?

The benefit amount is calculated according to the general rules for calculating average earnings (Government Decree No. 922 of December 24, 2007). As a basis for calculation, it is necessary to take the average salary of one working day for last year work before dismissal.

An example of calculating average daily earnings

First of all, you need to calculate the amount of accrued salaries and other payments for 12 months. Please note that this amount does not include vacation pay. sick leave, individual bonuses and some other payments provided for in the employment contract. After this, the result is divided by the number of working days.

For example, a storekeeper at an enterprise had a salary of 26,000 rubles, received a one-time bonus in the amount of 5,000 rubles for the period of work, and 7,000 rubles for the period of incapacity. Only salary should be taken into account:

26,000 x 12 = 312,000 rubles.

Based on the fact that there were 24 working days in 7 months and 25 in 5 months:

24 x 7 = 168 working days

25 x 5 = 125 working days

168 + 125 = 293 working days in 12 months.

It is necessary to exclude the number of actual absences of the employee:

• The employee was on sick leave for 7 days;
• 24 days - on a planned vacation.

293 – 7 – 24 = 262 working days.

Average daily income:

312,000/262 = 1190 rubles.

How to calculate the two-week amount of financial assistance?

The resulting average daily earnings should be multiplied by the number of working days in two weeks.

An example of calculating a two-week compensation payment upon dismissal

Continuing to consider the situation with the dismissal of a storekeeper, given in the previous example, the resulting amount of 1190 rubles must be multiplied by 10 days with a five-day working schedule:

1190 x 10 = 11,900 rubles.

Is severance pay taxed upon dismissal, and are insurance premiums charged on it?

Severance pay upon dismissal: personal income tax withholding

Material assistance is not subject to taxation if it is provided at the request of the Labor Code of the Russian Federation. This is confirmed in Article 217 of the Tax Code of the Russian Federation. However, there is an exception to this rule - if the amount of the compensation payment exceeds the average three-month salary for an individual’s employer, six months for a legal entity, personal income tax is subject to deduction from the accrued payment amount. They are calculated from the amount of excess established by law size limit payments.

Insurance contributions from severance pay upon dismissal

In accordance with Art. 9 of Law No. 212-FZ “On insurance premiums in Pension fund RF, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund”, any material benefits for termination of labor obligations do not provide for the accrual of such contributions. An exception is compensation for unused vacation.

Budget classification codes

Budgetary institutions, in order to reflect compensation upon termination of employment relations in their reporting, use certain KBK, based on the Instructions on the procedure for applying the BC of the Russian Federation (Order of the Ministry of Finance of the Russian Federation of December 2, 2010 No. 190n). Subsection 211 of KOSGU reflects expenses budget funds RF when paying for labor under contracts. This subarticle provides for legal requirements for the accrual of financial assistance for various reasons: liquidation of an enterprise, reduction of staff, reorganization and other events of a similar nature.

Subarticle 262 of KOSGU regulates the accrual of material compensation for reasons not related to staff changes and reorganization of the structure of an enterprise or institution.

Timely payments - social protection of citizens

Article 140 of the Labor Code of the Russian Federation regulates the timing of compensation payments, and they are set out very clearly - on the last day of work of the dismissed employee, all payments must be made to him. If the deadline is violated, the employer is subject to financial sanctions based on Art. 236 Labor Code of the Russian Federation. In addition, such an employer may incur an administrative penalty in the form of a fine, the amount of which will depend on the degree of his guilt in each individual case.

Payments of compensation former employee after two or three months, it must be done after presenting the relevant documents to the employer, but not earlier than the end of the corresponding month.

Is it possible to be fired without compensation?

Of course, some employers are not averse to circumventing the law in order to save the company money. Most often this happens due to citizens’ lack of awareness of the nuances of labor legislation. For example, when a manager offers an employee dismissal by agreement of the parties, severance pay is not paid. From a moral point of view, this is, of course, unfair. Such a leader will have the conscience of violating the rights of a person who is doomed to remain without work and without a means of subsistence.

A self-respecting leader, of course, will not allow such a situation. It is not without reason that the state provides monetary compensation for job loss, and this payment is protected from taxation and even from the withholding of certain types of alimony.

If the employer is law-abiding and treats his employees with respect and care, he may even increase compensation payments or pay additional benefits provided labor agreement, despite the fact that taxes, alimony and insurance premiums are deducted from additional compensation.

In practice, a manager for whom it is more important to save the company money by skillfully circumventing the interests of a dismissed employee is far from uncommon. Such employers forget that, in a sense, they are stewards of human destinies. Of course, it is more honest and reliable to act according to the law; this will always guarantee protection from grueling legal proceedings.

In some cases, on the last day of work of a resigning employee, he is paid not only salary, vacation compensation, etc., but also severance pay. The two most common grounds are downsizing or liquidation of the company. The amount of payment is determined depending on the average earnings and category of the employee according to the Labor Code. The rules and examples for calculating benefits are described in detail in the article.

Expert opinion

Chadova Svetlana

Leading HR specialist, legal consultant labor legislation, site expert

Labor legislation provides for quite a few cases when, upon dismissal, an employee is given not only a salary calculation, unused vacations and other compensation, but also severance pay. The main 2 cases are dismissal and due to the termination of the company’s activities (bankruptcy, reorganization, etc.). In such situations, a maximum of 2 months of benefits are due.

There are also a number of other reasons (conscription to the RF Armed Forces, refusal to transfer to another position due to medical reasons, etc.) when the employee is also guaranteed severance pay, but it is paid only for 14 days.

If an employee works in a company located in the Far North, he has the right to receive severance pay upon dismissal on the same grounds. However, the maximum payment period can be increased to 4-6 months if, being officially unemployed (registered with the employment service), he is still unable to find a job.

A similar guarantee applies to seasonal workers; They are also paid benefits for 2 weeks.

Another reason is the company’s violation of the rules for concluding an employment contract. In this case, the amount of severance pay is one month’s salary.

If a manager, his deputy or chief accountant resigns, the amount of payment is 3 months’ salary (or higher). The reason for dismissal in this case is a change in the ownership of the company.

The same amount of payments is due to a manager who leaves his job by decision of the owner of the company.

Thus, the employer pays both benefits and average monthly earnings only on the basis of reduction or liquidation. In other cases, the employee can only claim the benefit itself. For all other reasons, benefits are not paid.– dismissal at the personal request of the employee, in case of violation of discipline, as well as dismissal of a person who was hired for work fixed-term contract(valid for no more than 2 months).

Benefits and dismissal by agreement of the parties

At any time, the employee and the manager can come to an agreement according to which the employee quits on a specific date.

Thanks to this, he can quickly start looking for a new job, and the company gets rid of an “undesirable” employee on the staff. Often in such cases the parties agree on compensation, i.e. compensation, which is severance pay. Since the law does not oblige the appointment of payment upon dismissal by agreement, the employee and management agree on this individually.

The document is drawn up in any form, the main condition for its signing is that the decision is voluntary for each party. The agreement contains information about the parties (company name, full name of the director or other person acting on his behalf, full name and position of the employee), as well as:

• date of termination of the employment contract (this is the day of dismissal);
• the amount of the benefit, the procedure for its payment;
• a statement that the parties have no claims against each other;
• their signatures, transcript of signatures (surnames, initials);
• date, organization seal.

Payment of benefits may initially be provided for employment contract(individual or collective). This is an obligation the company undertakes voluntarily. In this case, the procedure and amount of payments are determined directly by the text of the contract or additional agreements to it.

Severance pay for employees hired by individual entrepreneurs

It is important to understand that from the point of view of legislation, employees who have labor relations with enterprises (legal entities) and employees working for individual entrepreneurs have different legal status. In general, they can count on the same labor guarantees, however, severance pay upon dismissal is not paid by the entrepreneur if:

• he liquidates his company (terminates activities as an individual entrepreneur);
• cuts staff.

The Supreme Court of the Russian Federation gave the corresponding clarifications.

The logic of the court is based on the fact that an individual entrepreneur is an individual, who is also an employer. However, since his company is not registered as legal entity(for example, LLC), a whole series The provisions of the Labor Code are not applicable to him. Thus, severance pay from an individual entrepreneur can be received only in cases where it is directly provided for in the employment contract.

How benefits are calculated: rules and practical examples

According to the above articles of the Labor Code, the amount of severance pay is determined by the average earnings received by the employee per month. The benefit can be 1-fold (for 1 month), 2-fold and less often larger.

* Also, benefits can be paid for 3 months, but only if the citizen is officially recognized as unemployed (registered with the employment service), but has not received a new job. In the case of workers from the Far North, this period can be increased to a maximum of 6 months.

Thus, to calculate the payment amount, you need to perform 2 actions:

1. Determine average monthly earnings.
2. Determine the category of employee in accordance with the Labor Code.

Earnings are determined for the last 12 months (or less time - based on the actual length of service of the employee in a given company). This is an average value, the calculation of which takes into account:

• the actual salary;
• bonuses and additional payments;
• allowances;
• other types of payments that are specified in internal regulatory documents employer.

In general, the calculation formula looks like this.

An employee has been working for the company for 18 months and is leaving due to redundancy. His salary consists of a salary of 30,000 rubles and a bonus. It was paid quarterly, on average 5,000 rubles. Then it turns out that for the entire period 6 bonuses were earned (for 6 quarters) in a total amount of 30,000 rubles. Average salary is: (30,000*18 months + 30,000 rubles)/18 months. = 31667 rub. This is the amount of severance pay for 1 month.

The employee works in the company for 6 months and 10 days, resigns due to being called up for military service. His salary is fixed at 36,000 rubles, no bonuses were awarded. We determine the average daily earnings based on the fact that there are 21 working days in a month: 36,000/21 = 1,714 rubles. The benefit must be paid within 14 days. Therefore, its size is 1714*14 = 23396 rubles.

Payment is made on the last day of work resigning employee, but only the amount for 1 month in advance is transferred immediately (similar to an advance).

If an employee is not employed, he can receive benefits for 2 or even 3 months, but the Labor Code does not describe in detail the accrual procedure. Therefore, it is advisable to independently contact your former employer, provide certificates from the employment center and demand new payment, and if the condition is not met, go to court.

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