Termination of labor relations between the employer and the employee is permissible if there are certain grounds for this, which are recorded in the Labor Code of the Russian Federation. Not only for the employee himself, but for each accountant, an important point is the determination of the timing of the calculation and the specific amount paid to the employee upon dismissal.
Payments upon dismissal on a general basis
In accordance with our labor legislation, an employee is entitled to receive a number of payments upon dismissal.
- The salary due to him for all the days worked by him (directly in the month when the dismissal was made).
- The employee is entitled to compensation for dismissal for unused vacation.
- The severance pay due to the employee (in cases specified in the Labor Code).
Terms and conditions of payment of due wages in the dismissal procedure
As mentioned earlier, payments upon dismissal of one’s own will consist of the salary due, the due compensation for the leave and the certain severance pay.
Such a parameter as the timing, with regard to the first category, is specified in Art. 140: employees who leave are paid salaries no later than the day they are dismissed. If the employee did not work on the last day, then he must be paid the established amounts no later than the next day after the employee has submitted the final settlement requirement.
In the event of a dispute regarding the amount due to the employee during the dismissal procedure, the employer must pay the uncontested amount within the time period specified in Art. 140.
The conditions and terms under which termination of one's own free will (payments in this case) and termination of employment for other reasons are not identical. These parameters may vary depending on the grounds for dismissal.
Payment of unused leave upon dismissal
The right to this compensation is not related to the reason for dismissal. In this case, the employee may submit a written application regarding the fact that in return for the payment of the due compensation they should be granted his unused holidays with the subsequent dismissal procedure (except for the cases of dismissal due to the fault of the employee himself).
In this situation, according to Art. 127, the day of dismissal - the very last day of the leave of the employee. Payment for leave upon dismissal of all due amounts and the issuance of a work book with an appropriate note on the reason for dismissal is made immediately before the employee leaves for vacation.
An important point: for the period of the illness during the vacation declared with the subsequent dismissal, the employee is entitled to a certain severance pay without extending the vacation by the number of days spent in connection with the illness.
In case of dismissal of an employee through his fault, the possibility of receiving annual leave in kind is excluded (exclusively monetary compensation for the vacation).
It is important to remember that under Russian labor law (Article 124), it is forbidden to refuse an employee the provision of annual leave (paid) due to him for 2 consecutive years. But this is permissible provided that the employee submits an application with a request for his transfer to other years.
The considered payment of compensation for leave upon dismissal is calculated on the basis of the number of days actually worked in the corresponding working year (vacation is calculated from the date when the employee engaged in his direct labor activity, and not from the beginning of the current calendar year).
Provided that the employee has not worked the time that is required to obtain the right to the full amount of compensation for the vacation, then it is calculated in proportion to the number of vacation days for the period worked (all actually worked months). An incomplete month is not subject to accounting (the number of days worked is less than 15). Provided that the employee worked two-thirds of the period under consideration, then this is included in the calculation as a separate whole month.
Cases when the amount of average earnings for advance leave is not withheld
They have the following form:
- The liquidation of the company or the complete cessation of activity at the initiative of the employer, in the role of an individual.
- Reduction in the number of employees of the company.
- Inconsistency of this employee with his position (the work he is doing) due to the state of health reflected in the medical report.
- Change of ownership of the company (with regards to the head of the company, deputies, chief accountant.
- Calling an employee for military or alternative civilian service;
- Recognition of an employee as fully disabled on the basis of a medical report.
- The death of an employee or employer (Federal Law) with the subsequent recognition by the court of the death or unknown absence of the subject.
- The onset of special emergency circumstances that interfere with the continuation of labor relations (catastrophe, large-scale accident, military operations, natural disaster, epidemic, etc.), provided that this circumstance is approved by the decision of the Russian government or the relevant state authority of a particular subject of the Russian Federation.
The rules for calculating the amount of average earnings charged are specified in Art. 139.
Severance pay: terms of payment, size
It is paid to employees upon termination of their employment contract. An important point is that the payment of benefits upon dismissal is made regardless of the subsequent employment of this employee, provided that certain circumstances specified in the Labor Code of the Russian Federation are present.
And the average monthly income of a given employee for the period of employment is preserved only in a situation when the resigning employee has not entered into a new labor relationship (in order to receive it in the 2nd month, the employee must confirm that he did not work at that time, for example, by presenting a labor a book without a record of new employment).
A retiring employee is entitled to a certain severance pay equivalent to the average monthly salary. Also, he will be saved the average monthly earnings for the entire time of employment (no more than 2 months from the date of dismissal and when taking severance pay), subject to termination of the previously concluded employment contract for the following reasons:
- reduction in the number or entire staff of the company;
- liquidation of a company.
The data provided for dismissal payments in special cases also include the average monthly earnings for the 3rd month from the date of dismissal in the event that a decision was made by the relevant authority - the employment service. In this case, the employee must contact the above authority within 2 weeks from the date of dismissal.
Subsequently, if the employee is not employed during this time, then he retains the size of his average monthly earnings for the third month from the date of his dismissal. To confirm this fact, the employee will need to provide the employer with his work book, which should not contain a record of new employment, a certificate from the employment center.
After dismissal, the employee will be able to receive these payments upon presentation of his work book at the time of payment of wages to the rest of the staff in this company.
Dates of maintaining average monthly earnings in the process of dismissal of certain categories of workers
Employees released from enterprises located in the Far North, as well as in equivalent localities, due to liquidation of organizations or reduction in the number of employees in them, must be provided with average monthly earnings for six months from the date of dismissal, including the required monthly holiday allowance (Article 138).
The employer is obliged to transfer the appropriate payments to the employee upon dismissal (severance pay) of one average monthly salary in the situation of termination of the previously concluded labor contract as a result of violation of certain rules established by our labor legislation or other federal law (excluding the possibility of employee guilt), provided if this violation does not allow continuing work.
If there is a reduction in the number (whole staff) of employees or liquidation of the company, the employer may, with the consent of the employee, executed in writing, terminate the previously concluded labor contract without prior notice within two months of the decision regarding his dismissal. At the same time, the employer is obliged to pay this employee additional compensation in the amount of two average monthly wages (Article 180).
Payments upon dismissal of an employee (severance pay) due to a change of ownership of the company constitute compensation of at least 3 average monthly wages, which the new owner of the company is required to pay (Article 181).
Severance pay for seasonal workers: terms, conditions of payment
It is paid in this situation, according to Art. 178, in the amount of average earnings calculated on the basis of two working weeks, subject to termination of the previously concluded labor contract for the following reasons:
- reduction in the number (whole staff) of employees of the enterprise;
- liquidation of a company;
- the initiative of the employer (inconsistency of the employee of the position held, work performed due to a health condition that impedes the continuation of his normal work);
- recruiting an employee for military or alternative civilian service;
- employee refusal of the required transfer (transfer of the employer's company to another location);
- reinstatement of a previously performing employee.
What payments are provided for when leaving for health reasons?
Loss of health is most often associated with the inability to perform their job duties. There are situations when the employer in this connection cannot provide such an employee with a different position or the employee refuses this option. In this case, our labor legislation necessarily provides for compensation payments, the amount of which directly depends on the status of the employee (civilian or military man).
Quite often fixed dismissal for health reasons. Payments in this situation (provided that the employee is a civilian) are severance pay equivalent to a two-week average earnings. In addition, if the employee used part of the advance leave, the employer cannot recover the previously issued leave.
Payments for military personnel upon termination of health include:
- cash allowance on a specific date (when the relevant military unit was removed from the lists of personnel);
- one-time payment of two monthly salaries (service life less than 20 years) and seven monthly salaries (total military experience of 20 years or more);
- cash payments of one salary (when replacing a military post);
- premium for the perfect performance of the required duties.
Also, in this situation, the employee can receive cash in exchange for clothing provided, relying on the year of dismissal (the total military experience should be from 20 years or more).
So, we can say that this payment upon dismissal (the terms of which were indicated in relation to individual situations) is provided, according to the Labor Code, without fail for each employee.
Features of the dismissal procedure for reduction
There are two grounds for reduction (Article 81):
- liquidation of the company or complete cessation of activity by the individual entrepreneur himself;
- the required reduction in the number of employees of the company, individual entrepreneur.
This procedure begins with order to change the staffing and the reduction in the number of employees of the company, either by the enterprise or by its separate division, which the employer must publish without fail. It should indicate the reason for such a reduction, and also determine the list of relevant units or individual posts that are subject to exclusion from the current staffing table or a reduction in the number of staff units for these posts. Be sure to determine the timing of this procedure and specific dates for termination of the relevant employment contracts.
The order indicates the data regarding responsible persons for carrying out all personnel events mentioned in this document. If the company has a trade union, then its professional opinion must be taken into account, and a representative from it is included in the commission.
According to Art. 180, regardless of the reasons for the reduction, the employer must notify the employee whose position falls under this procedure (the notification must be personal and must be made within two months from the date of termination of the previously concluded employment contract).
No less common is the dismissal of the reduction. The payouts in this situation are as follows:
- salary for 2 months worked by an employee after receiving official notice regarding the reduction of his position;
- compensation for the vacation (provided that it is not used until dismissal);
- the required severance pay of one average monthly wage for the first unemployed month;
- payments of one average monthly wage for the 2nd and 3rd unemployed month (upon presentation of the work book without a mark on new employment);
- payments in the amount of one average monthly earnings for the 4th - 6th unemployed month (subject to the registration of the employee in the employment center and receipt of the relevant decision on the specified payment of this body).
It is important to note that it is possible to terminate this employment contract before the expiration of the two-month period of official notification (upon execution of the written consent of this employee). At the same time, the employee receives additional compensation in the amount of one average monthly salary, calculated taking into account the time remaining until the end of the period allotted to warn the employee of dismissal.
It is worth recalling again what payments are due upon dismissal. As a rule, this is the salary due for the time worked by the employee, the compensated compensation for the vacation and a certain severance pay.
What payments are provided for retirees upon dismissal?
If their posts have been reduced, then this category of workers is paid a corresponding allowance in the amount of two monthly salaries.And they do not provide any additional special benefits.
Payments upon dismissal (for retirement) in case of leaving under general conditions are as follows:
- salary for all time worked by the employee;
- vacation compensation.
Settlements during the dismissal procedure
As a rule, the calculation of statutory wages for days worked by an employee does not cause any difficulties. As for such payment upon dismissal, as compensation for vacation, its calculation is presented in the Code (exclusively for certain categories), for example:
- employees who have entered into an employment contract for a two-month period (compensation shall be paid, in accordance with Article 291, based on two full working days per working month);
- seasonal workers (according to article 295, compensation is also calculated based on two working days per month of work).
The procedure for calculating unused days of laid-off leave of the remaining categories of workers is regulated by a special set of rules approved in the USSR. On the basis of paragraph 28 of this document, full compensation for the vacation is intended for the employee who has worked from the date of reception for at least eleven months, which is included in his experience and gives him the right to receive leave not granted at the time of dismissal.
The procedure for calculating this payment upon dismissal (calculation of compensation for vacation) is recognized as legitimate, as it is confirmed by the Supreme Court of the Russian Federation.
Taxation of retained average monthly earnings and severance pay
Compensation payments which are associated with the dismissal of an employee (except compensation for vacation) are not taxed with such tax as personal income tax. The nuance is that for this the following conditions must be met:
- payments upon dismissal must be supported by Russian law (the Russian Federation or its constituent entities, or local authorities);
- payments cannot exceed the norms established by Russian legislation.
As it has already become clear, if the severance pay and the retained average monthly income exceed the established norms, the non-included difference is taxed by personal income tax. Also, the situation is if the employee is provided with payments not specified by the Labor Code upon dismissal - they are taxed. Compensation for vacation in full must be subject to personal income tax.
To calculate income tax, taxpayer expenses such as salary include employee benefits that are released due to the reorganization or liquidation of the taxpayer, or a reduction in the number of employees of the entire company.
Based on paragraph 25 Art. 255 of the Tax Code, other types of expenses that are incurred in favor of the employee, if they are provided for by the labor or collective agreement, are also allowed to be included in labor costs. Consequently, severance pay and retained average monthly earnings are allowed to be included in company expenses. But at the same time, they should be reflected in the employment contract with the employee (directly or by reference to additional provisions of the collective agreement).
In the end, it will not be superfluous to single out once again what payments are due to the employee upon dismissal. Under general conditions, they include: wages for days worked by an employee, vacation compensation and severance pay.
