The final settlement with the employee upon his dismissal implies the payment of funds that are due to the latter for the entire period of his employment. labor activity. In this case, it is necessary to take into account the grounds for termination of the contract. After all, a citizen’s salary and other necessary payments will depend on this basis. In such a situation, the manager should not forget that full settlement with the resigning person must be made on the day when the employee last carries out his activities in this organization. Otherwise, the boss simply cannot avoid problems with the law.

Grounds

The final payment upon dismissal is made in all cases of termination of the employment contract. But the amount of money that the person will ultimately receive will depend only on the grounds on which the relationship between the employee and his boss is terminated. According to the provisions of Article 140 of the Labor Code, the manager must pay all funds due to the citizen on the last day of his work. And if it is impossible to carry out this procedure at the specified time, it must be done the next day when the employee made a demand for settlement with him. Otherwise, management may be in big trouble if a person seeks protection of violated rights in court.

It can be terminated both at the request of the employer and on the initiative of the citizen himself, as well as for reasons beyond their control. In addition, the desire to terminate the employment agreement is often mutual. In the latter case, the final payment under the contract can be made not only on the final day of the person’s work, but also after this moment.

Types of payments

Regardless of the reasons for termination of the employment contract, a final settlement is required. Mandatory payments include:

• employee salary;
• compensation for vacation that was not used;
• severance pay upon termination of the relationship between the parties to the agreement under clause 2, part 1

Additional types of monetary support include: dismissal benefits by agreement of the two parties, as well as other types of material compensation established by the collective agreement.

Procedure for issuance and retention

It is understood that all monies due must be paid to the employee. At the same time, some of them can sometimes be withheld. In a specific case we're talking about about vacation pay upon dismissal of an employee for the vacation that he took, but the period of work was not fully worked out, and the citizen decided to terminate his relationship with this organization and wrote a letter of resignation.

But there is one more important nuance. Money for used vacation will not be withheld by the employer from a person’s salary upon his dismissal only if his departure from work is due to staff reduction or liquidation of the organization. In this case, the employee will also have the right to severance pay in the amount of average income for two months, and if he did not get a job, then for the third month. The final payment upon dismissal of a citizen occurs on the last day of his work activity. And he is paid: salary, compensation for unspent vacation, severance pay, if applicable.

Vacation pay calculation

The company from which the employee is resigning must necessarily pay him compensation for vacation that was not used during the entire period of employment. In the case where a person has not been there for several years, the amount of payments is accordingly made for all this time. If a citizen terminates his employment relationship with an organization on his own initiative, and the period of work is not completely completed, then in this case deductions are made from his salary for the vacation used. In this case, the accounting department will have to calculate the exact number of days or months of work of the person.

The amount of vacation pay upon dismissal is calculated as follows:

1. The number of days of annual paid leave is taken, for example 28. Then it is divided by the number of months in the year, i.e. 12. Then the resulting number (2.33) is multiplied by the number of months worked in the working period, for example 4.
2. If you multiply 2.33 by 4, you get 9.32 unused vacation days. This number is then multiplied by daily earnings, for example 900 rubles. It turns out 8388 rubles. This is the money that a person is entitled to as compensation for unused vacation. Personal income tax will be withheld from the same amount - 13%.

The final payment to the employee should not be delayed by the boss. It must be done on time, regardless of which of the grounds specified in the Labor Code the citizen is dismissed from.

Rules for calculation upon termination of an employment contract

All payments due to the employee must be received on the final day of his work at this enterprise. In the event that the manager does not make the final payment at the specified time, he will bear administrative responsibility. In this case, the citizen must receive not only compensatory payments, but also the salary itself during work.

For each day of delay in payments, the manager pays a fine in the amount of 1/300 of the refinancing rate of the Central Bank of the Russian Federation. In addition, if the amount of the final settlement when paying severance pay is more than three times the employee’s earnings, then personal income tax in the amount of 13% will have to be paid on this monetary allowance. Tax is also withheld when paying vacation pay.

Care on your own initiative

The final payment upon dismissal of one's own free will must be made to the person on the last day of his employment duties, which includes:

• salary for the entire period of work;
• compensation for vacation or vacations if a person worked without annual rest for several years in a row.

An important fact should be noted here. If the vacation was used by a citizen, but the period of work was not completely completed, accordingly, upon termination of the contract, at the request of the latter, the employer has the right to withhold previously paid funds from his money.

When it is impossible to make deductions for unworked vacation

In a number of cases provided for by law, deduction for vacation upon dismissal is not made. The following situations fall into this category:

1. Liquidation of the employer's organization.
2. Staff reduction.
3. Termination of an employment contract when a citizen is unable to perform duties due to illness.
4. Conscription into the army.
5. With a complete loss of previous working ability.
6. Reinstatement to previous position by court decision.
7. Termination of an employment contract upon the occurrence of circumstances beyond the control of the parties.

In any of the above cases of dismissal of a person, the boss must make a final settlement with him on the last day of his work and pay all funds due by law. Otherwise, the person has every right to defend his interests in the prosecutor’s office and the judiciary.

its calculation and size

In a situation where the employer initiates the termination of the employment relationship, the citizen has the right in a number of cases to receive compensatory benefits. It is also called a day off. In this case, the amount of this payment can be in the amount of two weeks or one month’s earnings. Cash allowance in the amount of the employee’s salary for two weeks can be in the following cases:

1. If a person’s health condition does not allow him to continue working in this organization. Or when he refuses to move to another position, and the boss has nothing more to offer him.
2. In case of complete loss of a citizen’s ability to work.
3. If the terms of the employment contract change.
4. When a person is called up for military or alternative service.

In the amount of monthly earnings, the benefit is paid:

• upon termination of an employment contract due to layoffs;
• in case of liquidation of the organization.

Other circumstances may also be established when such benefits are issued to an employee. However, payment of the final payment upon dismissal, including compensatory benefits, must be made on the last day of the person’s work activity. In addition, when calculating this type of compensation, it is necessary to take into account the payment of taxes if the amount of monetary compensation exceeds the employee’s salary three times. Otherwise, personal income tax is not paid.

Example of final calculation

An employee who terminates his employment relationship with a particular organization has the right to receive earned money and other compensation if the grounds for dismissal allow this. Consider the following example.

Employee Ivanov leaves the company of his own free will. Naturally, in this case he does not receive severance pay and does not receive average earnings for the third month before employment. But he has the right to payment of earned money for the entire time and compensation for vacation. The final payment to the employee in this situation will be made according to the T-61 form. to be completed upon termination of the employment relationship.

Ivanov wrote a statement in April and resigned on the 19th. Accordingly, he should be calculated and given remuneration for work from 1 to 18 inclusive. If his average salary is 20,000/22 working days (this is the number of them in April), the resulting amount per day is 909.09 rubles. It is multiplied by the number of days worked in the month of dismissal - 18. As a result, the amount comes out to 16363.22 - Ivanov’s salary for April. In addition, the organization first pays tax on this money, and then accountants issue the final payment to the citizen.

Since the person quits in April, but he only has scheduled vacation in June, and he did not use it, he is entitled to compensation. The calculation occurs in the following order:

Ivanov worked this year for 3 months and 18 days. But the count will be 4 full. Rounding to tenths and hundredths is not done, so the amount is calculated from 28 days of vacation/12 months a year = 2.33 days. After which 2.33*4 (months worked)=9.32 days. And only then 9.32*909.9 (daily earnings) = 8480.26 (vacation compensation).

Thus, the final payment is made from all amounts due to the employee. But in this case, this is only a salary and cash payment for vacation, because Ivanov quits on his own initiative. If he were laid off or fired due to liquidation, he would also receive severance pay, which is also paid with all funds (based on Article 140 of the Labor Code of the Russian Federation).

Arbitrage practice

Currently, many former employees are turning to court to protect their rights, which they believe were violated by the manager upon dismissal. Especially if the issue concerns cash payments that were not issued to the employee in a timely manner and in the required amount. In practice, there are even cases when employers, making payments to a citizen, made deductions from his income for vacation that was previously used. And this ultimately led to lawsuits and complaints.

Let's give a colorful example from practice. The employee was dismissed from the organization due to staff reduction. The boss paid him in full, but when paying the money, he made deductions for the vacation, which the citizen had already used in June. In addition, the dismissal procedure for layoffs was violated by the employer in that he did not offer available vacancies to the employee. But at the same time, he accepted other persons into vacant positions, which is prohibited when carrying out measures for dismissal on such grounds. Having counted his earned money and discovered violations of labor legislation, the former employee applied to the judicial authority with an application for reinstatement at work and payment for forced absenteeism, which occurred through the fault of his boss.

Having considered all the materials of the case, the court came to the conclusion: the employer carried out the layoff procedure without complying with the labor code. In addition, he made a completely incorrect calculation with the employee. He simply failed to make the final payment upon dismissal (2016). He grossly violated the norms of the labor code, in connection with which the citizen was reinstated in his position, and the employer paid him moral damages and compensation for the vacation used, which he had previously illegally withheld. That is why managers need to be especially careful when paying employees and avoid violations on their part, so as not to later prove their case in the courts.

1. How often and within what time frames must wages be paid to employees?

2. How to determine the amount of advance payment due to employees.

3. In what order are insurance premiums and personal income tax from wages and advance payments calculated and paid?

“The main thing in settlements with employees regarding wages is to correctly calculate the amounts due to them.” This statement is only half true: it is important not only to correctly calculate employee salaries, but also to pay them correctly. At the same time, the stumbling block for many is paying advances to employees. Is it necessary to split the salary into an advance payment and a final payment if the amount is already small? Is an advance paid to external part-time workers? How to calculate the advance amount? We will look into these and other issues related to the payment of wages to employees in this article.

Frequency of salary payment

The Labor Code of the Russian Federation establishes the employer’s obligation to pay wages to employees at least every half month(Article 136 of the Labor Code of the Russian Federation). It should be noted that the Labor Code does not contain such a concept as “advance” at all: according to its wording, this wage for the first half of the month. And the widely used concept of “advance” came from a Soviet-era document, Resolution of the USSR Council of Ministers dated May 23, 1957 No. 566 “On the procedure for paying wages to workers for the first half of the month,” which is still in effect to the extent that does not contradict the Labor Code of the Russian Federation. Therefore, to make it easier to understand, in this article, advance means wages for the first half of the month.

So, for wages, the frequency of payment is established at least every half month. At the same time, other payments to employees have their own deadlines:

• vacation pay must be paid no later than 3 days before the start of the vacation;
• Severance pay must be paid on the day the employee leaves.

But the payment of sick leave is precisely tied to the payment of wages: benefits must be paid on the day closest to the date of payment of wages after the award of benefits. If such the nearest day is the day of payment of the advance, then the benefits must be paid along with it.

! Note: The requirement of the Labor Code to pay wages at least twice a month does not contain any exceptions and is mandatory for all employers to fulfill in relation to all employees (Rostrud Letter No. 3528-6-1 dated November 30, 2009). That is advance must be paid

• , including:
• if the employee voluntarily wrote an application for payment of wages once a month;
• if local regulations of the employer, employment contracts, etc. Payment of wages is established once a month. This provision is void and cannot be enforced, as it violates the requirements of the Labor Code of the Russian Federation.
• regardless of the amount of earnings and the accepted wage system.

If the employer nevertheless neglected the requirements of the Labor Code of the Russian Federation to pay wages to employees at least every half month, then in the event of an inspection by the labor inspectorate he faces liability in the form of a fine(Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

• for officials – from 1,000 rubles. up to 5,000 rub.
• for individual entrepreneurs - from 1,000 rubles. up to 5,000 rub.
• For legal entities– from 30,000 rub. up to 50,000 rub.

Deadlines for payment of wages

Currently, labor legislation does not contain specific terms for payment of wages, that is, the employer has the right to set them independently, enshrining them in the internal labor regulations, collective agreement, and employment contracts with employees (Article 136 of the Labor Code of the Russian Federation). The following must be taken into account:

• The time interval between salary payments should not exceed half a month. In this case, payments do not necessarily have to fall within one calendar month (Letter of the Ministry of Labor of Russia dated November 28, 2013 No. 14-2-242). For example, if wages for the first half of the month are paid on the 15th day, then for the second - on the 30th (31st) of the current month, if for the first - on the 25th, then for the second - on the 10th of the next month, etc. . In addition, the employer can set the frequency of payment of wages more often than once every half month, for example, every week - this approach is acceptable since it does not worsen the situation of employees and does not contradict the requirements of the Labor Code of the Russian Federation.

• Deadlines for payment of wages must be indicated in the form of specific days, and not time periods (Letter of the Ministry of Labor of Russia dated November 28, 2013 No. 14-2-242). For example: 10th and 25th of every month. A wording such as “from the 10th to the 13th and from the 25th to the 28th” is unacceptable, since in fact the requirement of the Labor Code of the Russian Federation to pay wages at least every half month may be violated: the employee will receive a salary on the 10th, and the next payment will be on the 28th, that is, the gap between payments will exceed half a month.

• If the established payment day falls on a weekend or non-working holiday, then wages must be paid on the eve of this day (Article 136 of the Labor Code of the Russian Federation).

! The employer bears (including advance payments and other payments in favor of employees): financial, administrative, and in some cases even criminal.

Advance amount

The Labor Code does not contain requirements regarding the proportions (amounts) in which parts of wages should be paid. However, Decree No. 566, which was already mentioned above, provides that the amount of the advance must not be lower than the worker’s tariff rate for the time worked. Despite the fact that this resolution deals with the wages of workers, a similar approach can be used in relation to other workers.

The amount of advance payment to be paid to the employee can be calculated in one of the following ways:

• in proportion to the time worked;

• in the form of a fixed amount, for example, calculated as a percentage of the salary.

Using the second option, paying an advance in a fixed amount, has one significant drawback - the likelihood that the employee will not work off the advance received. For example, in cases where an employee was on sick leave for most of the month, on leave without pay, etc. and was paid an advance, at the end of the month the accrued wages may not be enough to cover the advance payment. In this case, the employee has a situation, the retention of which is associated with certain difficulties for the employer.

Using the first option, paying an advance in proportion to the time actually worked, is more preferable, although more labor-intensive for the accountant. In this case, the amount of the advance is calculated based on the employee’s salary and the days he actually worked for the first half of the month (based on the time sheet), so the possibility of “transferring” the advance is practically excluded. Rostrud specialists in Letter No. 1557-6 dated 09/08/2006 also recommended that when determining the amount of the advance, take into account the time actually worked by the employee (actually completed work).

! The Labor Code obliges the employer for each payment of wages (including advance payments) notify the employee at writing (Article 136 of the Labor Code of the Russian Federation):

• O components wages due to him for the relevant period;
• on the amount of other amounts accrued to the employee, including monetary compensation for the employer’s violation of the established deadline for payment of wages, vacation pay, dismissal payments and (or) other payments due to the employee;
• about the amounts and grounds for deductions made;
• about the total amount of money to be paid.

This information is contained in payslip, the form of which is approved by the employer himself, taking into account the opinion of the representative body of employees.

Methods of payment of wages

Wages are paid to employees either in cash from the employer's cash desk or by bank transfer. In addition, labor legislation does not prohibit part of wages (no more than 20%) from being paid in kind, for example, in finished products (Part 2 of Article 131 of the Labor Code of the Russian Federation). In this case, the specific method of payment of wages must be specified in the employment contract with the employee. Let us dwell in more detail on monetary forms of payment of wages.

1. Payment of wages in cash

Payment of wages to employees from the cash register is documented with the following documents:

• payment (form T-53) or payroll (form T-49);
• expense cash order (KO-2).

If the number of employees is small, then the payment of wages to each employee can be processed using a separate cash order. However, with a large staff, it is more convenient to draw up a payroll (settlement and payment) statement for all employees and make one expense order for the entire amount paid according to the statement.

1. Transfer of salary to a bank card

The conditions for paying wages in non-cash form must be specified in the collective agreement or employment contract with the employee. For the convenience of transferring wages, many employers enter into appropriate agreements with banks for the issuance and servicing of salary cards for employees. This allows the entire amount of wages to be transferred in one payment order with a register attached, which specifies the amounts to be credited to the card account of each employee.

! It is possible to transfer wages in non-cash form only with the consent of the employee and only using the details specified in his application. In addition, the employer cannot “bind” its employees to a specific bank: labor legislation gives the employee the right at any time to change the bank to which his wages should be transferred. In this case, it is enough for the employee to notify the employer in writing about the change in payment details for payment of wages no later than five working days before the day of payment of wages (Article 136 of the Labor Code of the Russian Federation).

The procedure for calculating and paying personal income tax and insurance contributions from wages

We found that employees must be paid at least twice a month. In this regard, many people have a question: is it necessary to calculate insurance premiums and personal income tax from the advance payment? Let's figure it out. According to the law, insurance premiums must be calculated based on the results of the month for which wages are calculated (clause 3 of article 15 Federal Law No. 212-FZ). As for personal income tax, in accordance with the Tax Code, the date of receipt of income in the form of wages is recognized as the last day of the month for which income was accrued for work duties performed (clause 2 of Article 223 of the Tax Code of the Russian Federation). Thus, Neither insurance premiums nor personal income tax need to be charged on the advance payment.

The deadlines for payment of insurance contributions from wages are the same for all employers and do not depend on the date of payment of wages. Currently, contributions to extra-budgetary funds must be paid before the 15th day of the month following the month of salary calculation (clause 5 of Article 15 of Law No. 212-FZ). An exception is insurance contributions to the Federal Social Insurance Fund of the Russian Federation against accidents and occupational diseases - they must be paid on the day established for receiving funds from the bank to pay wages for the past month (clause 4 of Article 22 of Law No. 125-FZ).

Unlike insurance premiums, the deadline for paying personal income tax depends on the date and method of payment of wages:

Payroll accounting

In accounting, the calculation of wages, as well as personal income tax and insurance contributions, is reflected on the last day of the month worked. In this case, the following entries are made:

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Normative base

1. Labor Code of the Russian Federation
2. Code of Administrative Offenses of the Russian Federation
3. Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund"
4. Order of the Ministry of Finance of the Russian Federation dated October 31, 2000 No. 94n “On approval of the Chart of Accounts for accounting of financial and economic activities of organizations and Instructions for its application”
5. Resolution of the USSR Council of Ministers of May 23, 1957 No. 566 “On the procedure for paying wages to workers for the first half of the month”
6. Letter of Rostrud dated November 30, 2009 No. 3528-6-1
7. Letter of the Ministry of Labor of Russia dated November 28, 2013 No. 14-2-242

Find out how to read the official texts of these documents in the section

The procedure for dismissing an employee, regardless of the reasons, is strictly regulated by labor legislation. One of the main requirements for the employer in this case is to comply with the deadlines for payment of wages upon dismissal. The article will also consider the issue of illegal dismissal, as well as where to apply in such a situation.

Note! An application for termination of an employment contract at the initiative of an employee is submitted to the employer two weeks before the date of dismissal.

The exception is dismissal during the probationary period and during temporary work. In this case, the deadline for submitting an application is three days before dismissal.

When should salary be paid upon dismissal?

The terms for settlement with an employee upon termination of employment are specified in Article 140 of the Labor Code of the Russian Federation. It states that all funds due to the employee must be paid to him on the day of dismissal. On this date the employee is paid:

• wages for the current period;
• compensation for unused vacation;
• severance pay if dismissal occurs due to staff reduction or liquidation of the enterprise;
• additional compensation if they are provided for in a collective or employment agreement.

Also in Art. 140 indicates when wages are paid upon dismissal if the employee was absent from the workplace on the last day. The employer is obliged to pay him no later than next day after the employee makes demands.

If there are disagreements between the parties, funds are paid on the day of dismissal that are not the subject of a dispute between the employee and the employer.

Employer's liability for late payment

Labor legislation provides for penalties for employers who violate payment deadlines for resigning employees. So, in Art. 236 of the Labor Code of the Russian Federation states that if payments are delayed, the employer is obliged to additionally pay a penalty to the employee. Its size is determined by multiplying one hundred and fiftieth of the Central Bank refinancing rate by the amount of debt.

The penalty is calculated in this amount for each day of delay from the next day after the employer was supposed to pay the resigned employee. If payments were made partially, then penalties are calculated solely for the amount of the debt. The amount of the penalty indicated in the Labor Code of the Russian Federation is minimal. It can be increased in a specific organization, which must be indicated in the collective agreement. Reducing the amount of the penalty is prohibited.

If disputes arise with the employer regarding the payment of wages, he must still pay the amount that is not disputed within the appointed time (Article 140 of the Labor Code of the Russian Federation). Delay in payment is considered an administrative violation in which a fine is charged for each day of delay.

Art. 5.27 of the Code of Administrative Offenses of the Russian Federation provides for administrative punishment for an employer who violates the deadline for settlement with an employee upon dismissal. It is expressed in the form of a fine in the amount of:

• from twenty-five to thirty thousand rubles – for officials of the organization;
• from ten to thirty thousand for private entrepreneurs;
• fifty - one hundred thousand for legal entities.

Punishment for the employer in such a situation is also provided for in Art. 145.1 of the Criminal Code of the Russian Federation. May incur criminal liability individual- Head of the organization. If there is a partial debt for a three-month period or a full one for two months, he may be sentenced to a fine of up to five hundred thousand rubles or imprisonment of up to five years. Criminal liability is possible only if the selfish purpose of the manager is proven, which led to untimely settlement with the employee upon dismissal.

To protect their rights, a resigned employee must contact:

• to the labor inspectorate within three months from the date of the violation;
• to court - no later than one month from the date of violation.

Details about payments upon dismissal are described in the video.

What kind of dismissal is considered illegal?

Disputes between employee and employer also arise regarding the circumstances of the dismissal itself. All legal reasons for early termination of employment relations are reflected in Art. 77-84 Labor Code of the Russian Federation. All other circumstances of dismissal of an employee are considered illegal. For example, the following situations will be a violation of the law:

Some facts

Most often, the emphasis is placed on proving the absence of a certain document or action on the part of the employer, or a serious violation of the procedure. It must be remembered that a claim can only be filed within 1 month from the date the order is issued or the day the work record book is handed over to the employee. The consideration of the case also takes place within 1 month.

• Inconsistency between the actual reason for dismissal and that indicated in the work book. For example, an organization needs to reduce staff, and employees are forced to write a letter of resignation of their own free will.
• Dismissal of an employee who is on sick leave or on leave, including for child care.
• Dismissal of a pregnant woman or single mother (father) due to staff reduction. This is only permissible in case of complete liquidation of the company, etc.
• An employee who believes that he was fired in violation of labor laws should contact:
• To the state labor inspectorate. Upon receipt of the complaint, the inspector will conduct an inspection and make a decision. If the fact of illegal dismissal is proven, the employer will be obliged to reinstate the employee in his position and pay him monetary compensation. The period for appealing dismissal from work to the state inspectorate is three months from the date of illegal dismissal.
• To the court at the location of the employer. The period for appealing dismissal in court is 1 month.

Also, in the event of illegal dismissal, the injured person has the right to contact the prosecutor's office. If there is sufficient evidence, the case will also go to trial.

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

What is calculation

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

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

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

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

When is payment due upon dismissal made?

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

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

If the employee has a day off

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

If the administration has a day off

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

When to pay taxes when dismissing an employee

All payments made as part of the calculation:

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

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

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

Responsibility for delay

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

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

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

The dismissal procedure must comply with legal requirements. One of the most important points In this case, the final settlement is made and all amounts due to the employee are paid. The article discusses the question of when wages should be paid after dismissal.

This article discusses issues related to the timing of calculation upon dismissal. In a normal situation, such a calculation should be made on the employee’s last working day before dismissal.

There may be situations when he will not be at work for any reason. In this case, he receives payment when he reminds his former employer about it. This must occur no later than the end of the next day thereafter.

It happens that the employee and the boss have different opinions about the amount the former actually earned. In this situation, mandatory payment within the specified time frame is provided for the amount regarding which there is no disagreement.

When should wages be paid after dismissal?

The statutory payment time is the employee's last day of work.

In some cases, a different date for calculation may be set. If wages are paid late, this is a violation. In this case, additional compensation is paid proportional to the number of days for which payment was delayed.

If, when determining the final amount, there are certain controversial issues and they need to be resolved additionally, then the payment is divided into two parts:

• the amount regarding which there is no disagreement;
• a controversial part of the paid funds, regarding which the issue has not yet been resolved.

The first part is paid on the last working day, and the second part is considered (often this involves going to court).

Upon dismissal as a result of staff reduction (in the event of liquidation of the company), several payments are due. The first part is in general order, that is, on the last day at work. Additional payments are made after a month and two, provided that the former employee continues to remain unemployed.

For information on severance pay in case of staff reduction, see here:

Upon resignation of one's own free will

In case of dismissal of this type, general rules according to the timing of payments, that is, the money must be paid on the employee’s last working day.

Dismissal while on vacation

If an employee is on vacation, then he has every right to receive his money no later than the next day after applying for his previous job, as stated in Article 140 of the Labor Code of the Russian Federation.

What types of payments are due?

In most cases, in this situation, two payments occur:

1. The employee must receive the salary he earned up to the date of termination, including his last day at work.
2. If he has unused vacations, he must include compensation for them in the calculation amount.

When talking about vacations, you need to consider the following. It is believed that the employee must use the holidays due to him in accordance with established deadlines. Typically, current vacations are issued in accordance with a predetermined schedule. It must be completed before the start of the relevant year.

If an employee does not want to take leave, then this situation is usually considered non-standard. If a large number of unused vacations accumulate over many years, this can add up to a significant amount upon dismissal.

When calculating such payments, the average salary for the previous period is used. However, there are situations when upon dismissal, in addition to those indicated, other payments must be made.

So, if this company pays the thirteenth salary, then it will be necessary to add it to the payment.

There are special cases of dismissal when employees are entitled to additional payments. These are situations when it comes to staff reductions. A similar situation occurs during the liquidation of an enterprise. In this case, additional amounts are provided for citizens.

When calculating, an amount equal to the monthly payment must be provided. It is severance pay. After dismissal, another payment of the average salary for one month is provided. But this can only be done in a situation where the former employee has not found a new job.

One more, third payment of the average salary per month is possible. This will be done in the case where the former employee is registered with the employment service within a period that does not exceed 14 days from the date of registration of dismissal.

In the latter case, the money will be paid provided that there has been an application from the employment service and that the former employee is still unemployed.

There may also be payments of other types. For example, it is possible that an employee provided a car to a company in exchange for a certain rental fee, compensating for its depreciation and maintenance costs. Debts for this type of payment must also be paid.

In the case when layoffs due to reduction are being considered (the same applies to the liquidation of the company), the employee, on a voluntary basis, can apply to the boss for early dismissal. This may be necessary if he has found a job where they do not want to wait for him for too long. In this case, he is entitled to an additional payment.

Other payments are possible depending on the specific situation.

Late payment of settlement

The Labor Code establishes that in case of violation of the legal requirements regarding the terms of payment of wages upon dismissal of an employee, the boss is obliged to additionally pay monetary compensation. However, this type responsibility is not the only one in the situation under consideration.

Employees have the right to file a corresponding complaint with the regulatory authorities (for example, we can talk about contacting the labor inspectorate). In this case, the issue must be considered within a time frame that does not exceed 30 days.

In this case, a decision must be made to inspect the enterprise. If non-payment is confirmed, a corresponding order will be issued, which will indicate the detected deficiencies and set a deadline for their elimination.

When the period allotted for correction has expired, a second inspection will follow, which will allow the inspectors to judge whether all the problems discussed in the order have been eliminated. If violations are not eliminated, the inspector has the right to bring the head of the company to administrative liability.

It is permissible, if necessary, to sue the former boss. However, it is necessary to provide for a situation where he declares that the former employee himself did not want to come for the money owed to him. To exclude the court from considering this option, it is necessary to attempt a pre-trial settlement of the case.

To do this, you must make an attempt to receive the money owed and document the attempt. If payment is made in full, the issue will be closed. If not, the court can reasonably say that there was an attempt to settle the case out of court.

When considering a case at a court hearing, it is possible not only to receive unpaid money along with late fees, but also compensation for moral damage.

Employer's liability

Unfortunately, situations are possible when the former boss, during the dismissal process, for some reason did not pay the outgoing employee. This may be a complete failure to pay the money owed to him or only a partial one. However, according to Article 236 of the Labor Code, non-payment is punishable.

In this case, compensation is provided for the employee whose payment was delayed. It is calculated based on the key rate of the Central Bank of the Russian Federation. At the time of writing this article, its value is set on March 26, 2018 and equal to 7.25%.

The calculation is as follows. The specified value must be divided by 300 (at the moment this will result in 0.02417%) and multiplied by the amount of unpaid funds, and then by the number of calendar days (weekends and holidays) delays.

An example calculation looks like this. Let the debt amount to 30 thousand rubles. The last day of work was May 7, 2018. The specified amount of debt was paid on July 5.

To determine the amount of compensation, you need to calculate the number of days by which the former employer was late with payment. It will include:

• in May - 26 calendar days;
• all of June - 30 days;
• 5 days of July.

The total duration of the period under review will be 61 days.

Now you need to calculate the amount that will be credited daily. This will be 30000 * 0.02467% = 7 rubles 40 kopecks for every day. Multiply by the number of days (7.40 rubles * 61 days) and get 451 rubles. 40 k. When calculating, the specified amount, according to the law, must be paid additionally.

This payment is determined by the Labor Code of the Russian Federation; its increase is allowed on the basis of a collective agreement available at the enterprise. The amount of such compensation may be increased based on local regulations issued by the enterprise. Sometimes this increase is considered during the signing of the employment agreement.

Often, being fired represents a difficult life situation. However, we must not forget that the employee has rights that are guaranteed by law. To use them, you need to know about them and how to use them.

For information about payments to employees upon dismissal, see this story:

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