Severance pay upon liquidation of an organization: how to calculate?

In the conditions of an unstable economic situation, there are frequent cases when company leaders are forced to stop their activities. Accordingly, this entails the dismissal of staff. The need to stop work may be caused by lack of funds, debts of contractors, etc. In such cases, the founders of the companies decide to liquidate the business. In the process of dismissal of employees, it is important not to violate their rights. As one of the duties of the head of the enterprise is the payment of all due funds to employees. The article will discuss how the calculation of severance pay is made upon liquidation of the organization. An example of accrual will also be considered below.

Features of the procedure

When deciding on the termination of the company, the founders must form a liquidation commission. She receives authority to manage the company. Among her responsibilities, among other things, is the dismissal of personnel. In part 6-1 of Article 22 of the Federal Law governing the process of state registration of legal entities and individual entrepreneurs, the enterprise is considered liquidated after making the appropriate entry in the USRLE. If the termination of activity did not actually occur, then all dismissed employees can be reinstated by a court decision at their work. The dismissal of specialists in the first part of Article 81 of the Labor Code is thus only lawful when the fact of liquidation by the entry in the register is proved.

Important point

The termination of business should not be confused with a change in jurisdiction, property owner or reorganization. The liquidated enterprise has no successors. In this regard, absolutely all employees are subject to dismissal. These include pregnant women, single mothers, minors, employees with dependent minors, as well as those who are on vacation and on sick leave. This means that the amounts provided for accrual are due to all, including the severance pay. Upon liquidation of the organization, no restrictions were placed on the militants. All legal entities that do not carry out their activities are required to comply with the deadlines and sequence of activities related to termination of contracts with staff. This will prevent disputes, the costs of litigation.

Notices

You should be aware that the head of the company being liquidated is obliged to notify the employment service, the trade union, and the employees themselves about the upcoming dismissals. The first instance is notified no later than two months. before the estimated closing date of the company. The notice must indicate the position, qualification requirements, specialties, professions and remuneration. If mass dismissal is expected, then the notice is sent for 3 months. The criteria for this process are set out in sectoral and territorial agreements. If they are absent, one should be guided by the rules that are present in the Regulation on the organization of employment assistance in mass release. It provides notification forms that are used in this case.

If the manager has not provided or untimely provided the necessary information, he may be held administratively liable under Art. 19.7 Administrative Code. Article 82 of the Labor Code prescribes the mandatory participation of the trade union in considering problems related to termination of contracts. However, nothing is said about the liquidation of the enterprise. Along with this, the dismissal of personnel is carried out after written notification of the union at least 3 months in advance.Notices to the employment center and the electoral structure from employees can be made in any form.

Employee Notification

Employees must be informed of upcoming layoffs no later than two months under the signature indicating the date of familiarization with the relevant decision. If the company employs persons under contracts whose duration is less than two months, they are notified three days before the established date of dismissal, seasonal workers are notified one week in advance. If the company is in bankruptcy recognition proceedings, the bankruptcy manager shall notify the employees. Informing is carried out no later than a month from the beginning of the process. Under Article 180 of the Labor Code, the head of the company can terminate the contract by written consent of the employee before the end of the two-month period.

In this case, the employee is entitled to additional compensation, the value of which is equal to the average monthly salary. The notice for each employee must be issued in duplicate. Signed remains with the head. The employee may not sign the notification. If this happened, an act should be drawn up. The document records the fact of the notification, the date and the refusal of the employee. The act is executed in duplicate with witnesses, who also sign it. If any of the employees is on a business trip, the manager must recall them and give a notice in the prescribed manner.

Paperwork

It is necessary to issue orders on dismissals after the expiration of the established 2-month period. The supervisor should familiarize each employee with the signature order. In case of refusal to sign or if it is impossible to familiarize themselves, appropriate marks are made. After that, the information is entered into the labor books with reference to the norm of the Labor Code. On the day of dismissal, employees receive all the compensation, benefits laid down by law. After that, filled out work books are issued.

Accruals

Upon termination of the contract due to the termination of the existence of the company, the employer lists:

• s / n for the days worked in the month of dismissal;
• compensation for unused vacation in previous years (without any restrictions);
• additional amounts upon early termination of the contract;
• severance pay (upon liquidation of the organization it is equal to the average monthly salary);
• average earnings at the time of applying for a job, if no more than two months have passed from the date of dismissal, and for the third month when providing a certificate from the employment service.

Compensation for early termination of professional activity is equal to the average salary. Its calculation is carried out in proportion to the time remaining until the end of two months. from the date of notification. Payment of severance pay upon liquidation of an organization to employees with whom a contract is concluded for less than two months is not made. Seasonal workers are entitled to an amount equal to a two-week salary.

Compensation for unused vacation days

An employee can count on it under Art. 127 shopping mall. Calculation is carried out by multiplying earnings for 1 day by the number of unused vacation days. The duration of the rest period under Art. 115 TK - 28 days. If the employee has not used them during the whole year of work, payment is made for all these days. If an employee has been in the state for less than a year, the number of vacation days is calculated in proportion to the period worked. Full compensation is accrued only to those who have been in the state for at least 5.5 months. The company has the right to round the number of days in favor of the employee. AT Art. 238 The Tax Code stipulates that compensation for unused vacation days is not included in the tax base for UST and for assessing contributions to the OPS.

Severance pay in connection with the liquidation of the organization

It represents the amount for the first month after dismissal. Severance pay upon liquidation of an organization is due to all employees.It doesn’t matter if they found work in the first month or not. The dismissed receive average earnings in the second month of unemployment. In this case, the severance pay upon liquidation of the organization is provided at the request of the former employee. In this case, he will have to provide his work book, in which there will be no record of his acceptance to a new job. If, during the second month, the former employee was not able to find a job, the law provides for the possibility of obtaining an average salary for the 3rd month. This is allowed by permission of the employment service. For this, within two weeks. after the contract is terminated, you need to get registered in the center. If in two months the employment service has failed to employ an employee, then he can receive compensation.

When can I get the money?

Compensation is provided at any time when a former employee applies, if the company has not been excluded from the USRLE. As a rule, the process of termination of the company lasts several months. Calculation of severance pay upon liquidation of an organization is carried out immediately after applying for an application or together with a salary.

A responsibility

It is installed in Art. 236 TC. If the employer for some reason delayed the accrual and payment of the due amount, he will have to compensate for the delay in interest. Their size is determined by the Central Bank refinancing rate. This procedure applies regardless of to whom the severance pay was delayed during the liquidation of the organization: the chief accountant, the employee of the production department, the pregnant secretary or the cleaner.

Compensation for early termination of the contract

It supplements the severance pay upon liquidation of the organization. How to calculate compensation? Its value will be equal to the average salary accrued in accordance with the period remaining until the end of the legislatively established warning period from the date of notification of dismissal. Such an order is valid only if the employee agrees to the early termination of legal relations. This is usually a separate agreement.

Severance pay upon liquidation of an organization: how to calculate the amount?

Calculation is carried out in accordance with the rules given in Article 139 of the Labor Code and the Regulation on the specifics of the procedure for forming a salary, approved by a government decree. What is included in the severance pay upon liquidation of the enterprise? When accruing, the chief accountant should take into account all the amounts that are due to employees according to the financial policy established by the company. In this case, the sources of revenue will not matter. The severance pay is accrued upon liquidation of the organization to pensioners and other categories of employees under any mode of activity in accordance with the salary and hours worked for 12 months that precede dismissal. By Art. 139 TC as a calendar month is the interval from the 1st to the 30th (or 31) day inclusive. When the contract is terminated on its last day, it enters billing period. If the date of dismissal falls on another day of the month, then the 12 months preceding it are taken into account.

Tax Code

When accruing such material reimbursement as severance pay upon liquidation of the organization, taxation is made according to Art. 255. The payer may take into account all amounts in the cost of s / n in the formation of deductions from profits. You should be aware that the severance pay does not apply to the liquidation of an enterprise. In addition, are not charged:

1. Contributions to the OPS.
2. UST.
3. Contributions under insurance contracts for work-related injuries and occupational diseases.

Nuances

The size of a three-month salary is the limit to which the severance pay may be equal upon liquidation of the enterprise. In this case, taxation is carried out according to the above rules. Compensation, however, may exceed the amount of earnings for 3 months.In this case, over-accrued personal income tax will be levied. For those persons employed in companies operating in the Far North or in territories equivalent to them, the limit is doubled, that is, six average monthly salaries.

Accrual scheme

In the calculations, the following formulas should be used: VP = RD x SDZvp and SDZvp = ЗП / ОД, in which:

• SDZvp is the average salary;
• s / n - remuneration for actually worked days, including remuneration and bonuses;
• OD - the number of days worked;
• RD - working days in the period that the company must compensate.

In accordance with this, the severance pay is calculated upon liquidation of the organization. Example:

As the covered period, we take the time from June 1, 2007 to May 31, 2008. During this period, the amount of accrued salary is 352,800 rubles, and the number of days actually worked is 249. Thus, the day will amount to 1,416.87 rubles. In July 2008, the number of working days was 23 (according to the production calendar). The result is 1416.87 rubles. x 23 slave days = 32,588.01 rub. - severance pay upon liquidation of the organization. PIT, as mentioned above, does not apply to this amount.

Pregnancy charges

Severance pay upon liquidation of an organization to maternity leave shall be accrued on a common basis. This is due to Art. 6, which is present in the Federal Law governing state support to citizens with children. The termination of the company does not deprive the employee of the right to receive maternity and pregnancy benefits. A dismissed employee must be registered with the employment center to receive compensation. She is appointed by the social security authority at the woman’s place of residence. You can get money in the same structure. Thus, maternity and pregnancy compensation and severance pay for the liquidation of the enterprise are calculated. Decree-makers in the body of social protection must be provided:

1. Application for compensation.
2. Disability sheet.
3. Extract from the work book about the last place of professional activity, certified by the employer.
4. A certificate confirming the status of unemployed (it will be issued by the employment center).

Compensation can be received within 10 days from the date of submission of securities.

Separate categories of employees

Special rules are provided in the legislation for civil servants. For example, the average earnings for them will be the amount calculated over the three months of the post if their dismissal is caused by the liquidation of the state structure or reduction of staff, excluding severance pay. In addition, if a civil servant was unable to find a job in accordance with the qualifications and profession, he is credited to the registry reserve. At the same time, experience will go on continuously throughout the year.

Improving the situation of workers

TC allows the actions of the enterprise management, aimed at the benefit of the staff. All activities undertaken by the employer should in no case worsen the situation of employees. The TC and other regulatory documents provide for the minimum allowable amount of severance pay. As for the maximum size, it is determined by the terms of collective or other agreements. It should be remembered that the legislation sets a tax-free limit. All amounts accrued above it will be levied.

What to look for

The liquidation procedure of the enterprise provides for a number of mandatory measures. In particular, interim and final balances are prepared. As a rule, they duplicate information from the financial statements with the addition of significant data relating directly to the procedure. Such information, among other things, includes compensation payments, severance pay, average monthly salaries, payables. It should be noted that the law provides for the sequence of repayment of obligations. In particular, settlements with employees are made prior to payment of loan obligations.In addition, the company should provide assistance to those dismissed in their subsequent employment. The mandatory actions, in particular, are the notification of the employment center about upcoming personnel changes. At the same time, the law establishes a sufficient period for the service to find suitable work for those laid off in accordance with their qualifications, professions and accrued salaries.

It is also important to properly execute all documents upon termination of employment with staff. The dismissal of "at the request of" the head is not allowed. It is, in particular, about those unscrupulous employers who do not wish to pay severance pay and compensation. These actions are considered illegal and can be challenged in court. When one of the employees is on a business trip, the head has the right to recall employees and notify about upcoming events. However, the law prohibits calling employees on vacation. If it so happened that someone is on vacation and someone is on a business trip, and the situation at the enterprise is such that it is inappropriate and unprofitable to continue working, it is worth waiting for the employees to return from vacation and then make a decision on liquidation. You can also set a date at the meeting of the founders when the procedure will begin. In this case, it is necessary to take into account the time prescribed by law for notification, adding to it the days remaining until the end of the leave of employees.

Conclusion

In general, the procedure for calculating with employees during liquidation should not cause difficulties. The main thing here is to strictly follow the requirements of the law. This also applies to the list of due payments, and the timeliness of their issuance. On the last day of work, all employees must receive completed work books. If the liquidation of the enterprise has not occurred, then the employees have the right to apply to the court to restore their rights. In this case, they will need to prove the illegality of the dismissal. The court, in turn, is obliged to verify all the facts indicated in the statements. If they are confirmed, workers will be reinstated in their places. The leader can be punished, the volume and size of which will be determined by the court.