Labor relations between the employer and his subordinates are fixed by law. One of the important points in any production activity is the conclusion of employment contracts and their termination. A person can leave his place of work for many reasons. Today we’ll talk about the timing of the settlement upon dismissal at will.
What does it mean to quit on one’s own initiative?
Every citizen who has reached the age of late youth has the right to get a job and accordingly takes this opportunity to earn money. During the development of any profession, a person from a beginner advances to an experienced worker who has all the tricks and secrets of his business.
But, as they say: "The fish is looking for where it is deeper, and the man where it is better." Therefore, quite often, in search of a new highly paid job, we say goodbye to our old duties and master new ones or simply move to another employer who agrees to pay for our services more expensive.
All these conditions, and also do not exclude unforeseen life circumstances (illness or moving to a new place of residence), lead to the fact that a person writes a letter of resignation on his own initiative.
How is the dismissal on their own initiative secured by law?
The basic rules for the dismissal of workers who made this decision themselves are enshrined in article 80 of the Labor Relations Code. According to this article, the employee must notify his employer in writing of the dismissal in two weeks.
This period begins to count on the next day after the boss received a letter of resignation.
If both parties to the employment relationship are not opposed, then the employment contract may be terminated earlier.
Also, if the employee decides to remain in his post, he can withdraw the application until the time given for the warning of dismissal expires. A citizen remains in his place if a new employee has not been invited to this position. It should be remembered that a new employee must be invited to work in writing.
Despite the fact that this type of dismissal is regulated by article 80, an entry in the work book is made on the basis of paragraph 3 of Article 77 of the Labor Relations Code.
In what cases is the dismissal of an employee on his own initiative without a two-week working off?
An employee may leave his job duties on the day specified by him in the application, in the following cases:
- It is impossible to continue working due to retirement age or enrollment in an educational institution accredited to carry out educational activities.
- Violation by the employer of a collective agreement, employment contract or agreement, or other legislation in the field of labor relations.
When is the final settlement made upon dismissal?
After the warning period has expired, the employee resigns and is considered dismissed.
The employer hands him a work booklet with a note of dismissal on his own initiative, other working documents specified in the employee’s application, and makes the final payment with him upon dismissal.
If after the expiration of the period of working out the labor agreement is not terminated and at the same time the employee continues to carry out his duties, the labor contract continues.
Who is fired without a deadline of 2 weeks?
If an employee has been hired recently and his or her employment contract has a probationary period that has not yet expired, then his dismissal must be executed within 3 days. Settlement upon dismissal is also required to issue on the day of dismissal.
By the same principle, seasonal workers hired for temporary work are fired.
What payments includes the calculation of workers who quit on their own initiative?
If the employee decided to terminate the labor contract on his own initiative, then his calculation should include the following payments:
- Calculation of unused vacation days upon dismissal (compensation for vacation that was not used by the employee).
- All available wage arrears.
- Payments for days worked in the month of dismissal.
You should carefully study the pay slip and make sure that the salary with the premium and allowances due is correctly calculated, and also, if this is not done, ask to pay vacation compensation.
If you have worked without vacation for many years and at the same time did not require monetary compensation for it, you should be aware that you will receive compensation only for the current and previous years. All other amounts are burned. At the same time, the employer is not obliged to remind their employees of this; they themselves must take care of payments for unused holidays.
Is severance pay paid?
This benefit is paid only during the layoff procedure. Therefore, those who leave on their own should not count on him.
It is also paid in case of liquidation of the organization.
How is vacation compensation calculated?
This compensation is paid if the employee has not used his legal regular leave this year or used it, but not fully.
In order to calculate the compensation payment, it is first necessary to determine the average daily earnings of a resigning citizen. For this:
- Find the number of days worked in the month: pWorking days of the month - days that were not visited by the employee on all grounds.
- Define the average daily earnings: payments for the calculation period / number of days worked in a month.
- We calculate the compensation payment: all days worked in the month of dismissal x average daily earnings.
Dates of payment of settlement upon dismissal
Labor Code of the Russian Federation, namely, article 140 stipulates that a retiring employee must receive all payments due to him on the day of dismissal.
It is generally accepted that the day the person worked the last time and the day of dismissal coincide, but sometimes this is not so. For example, if an employee works in shifts after two days. The last shift occurred on April 13, and he leaves on April 15. Thus, the last working day in the second spring month is on the 13th, and the day of dismissal will be the 15th. This means that the deadline for calculating the dismissal of their own free will in this case is April 15th.
Article 140 also mentions that if these two days do not coincide, then the employee must present to the employer a demand for his calculation. Orally or in writing, it is not clear, as this is not specified in the law.
What threatens the employer with non-payment of wages on the day the employee is fired?
If the employee has not been paid the calculation upon dismissal, then it is legislatively stipulated, namely, Article 236 of the Labor Relations Code, that the employer must pay compensation for each day of delay. It equals 1/300 to the refinancing rate of the Central Bank of the Russian Federation, which is currently in effect. The formula for calculating compensation is as follows: Compensation = Refinancing rate / 100% x 1/300 x Amount of debt x Number of days past due
For violation of the calculation deadline for dismissal at will, the employer faces administrative and criminal liability.
Responsibility for not paying salaries upon dismissal
Delay in settlement upon dismissal shall result in liability in the following cases:
- If the organization had money in its accounts, but the employer did not pay wages, but spent all the money to buy new equipment or pay off payables.
- If the delay lasts from two months or more, while the calculation amount is not fully paid. If the debt is partial, then liability occurs after three months of delay.
Administrative and criminal liability for late payment of the calculation?
Violation of the deadline for settlement upon dismissal at will leads to the following consequences:
- If the delay lasts two days, then the employee has the right to demand compensation for this.
- Also, small delays lead to bringing the employer to administrative responsibility. In this case, penalties are imposed. The size of the fine depends on whose fault the calculation was delayed. If this is the fault of the head as an individual, then the fine will be up to 50,000 rubles, if the organization is to blame as a legal entity, then up to 100,000 rubles.
- Longer delays lead to criminal liability.
However, most often the employer or organization pays penalties, as this is more beneficial for the state.
Where can employees look for protection against illegal actions of the employer?
In case of violation of the terms of payment of the calculation upon dismissal on his own initiative, the employee has the right to apply for help to the court, prosecutor's office and labor inspection.
For your safety before applying to the punitive authorities, you must file a claim with the employer. This is necessary so that your superiors do not declare that you yourself did not appear for the calculation.
The claim must indicate the day of dismissal, information about non-payment of wages and intentions to apply to the justice authorities.
The claim should be written in duplicate and registered with the secretary. One copy with the incoming number is sent to the head, and the other remains with the employee.
You must remember that the labor inspectorate has the right to consider your application within 30 days and should be contacted no later than three months after receiving a dismissal order and a work book with a notice of dismissal on your own initiative.
The court will accept your application if you applied no later than a month.