The right to severance pay upon dismissal. Severance pay upon dismissal

Art. 178 of the Labor Code of the Russian Federation guarantees resigning employees financial resources supporting them during the period of employment - severance pay. The goal is to financially support the former employee while he is looking for a new job, if he had to leave the old one not of his own free will or fault. The employee receives this payment on the day of dismissal.

In the article, we will consider the subtleties regarding the calculation of this benefit, the procedure for its payment, its relation to taxes and contributions, and also analyze who is entitled to count on it and in what amount, and who does not have to rely on this financial support.

Who pays severance pay

Employer - entity is obliged to guarantee the payment of severance pay to dismissed employees, except for the grounds for dismissal listed in the legislation.

If the employer is self employed, the question of the payment of severance pay is left to its discretion. These points are negotiated when hiring and should be reflected in the employment contract. If the main document, which is designed to regulate the concluded labor relations, does not address this issue, the dismissed person may be left without severance pay, and this will be legal.

Dismissals with benefits

When a dismissal order is issued, it indicates the basis for the dismissal of the employee from the position and the corresponding article of the Labor Code. For each reason, there is a specific procedure for terminating employment agreements, which in many cases includes the accrual of a “dismissal” allowance. It is based on the following grounds:

• liquidation of an enterprise, organization, firm;
• downsizing or downsizing;
• professional unsuitability for medical reasons (if there is no other suitable vacancy or the desire of the employee to take it);
• complete loss of ability to work (according to a medical report);
• unwillingness to continue working in changed working conditions;
• disagreement to transfer to another locality after the employer;
• conscription into the army or to a service replacing it;
• leaving a maternity position;
• cancellation of an incorrectly drawn up employment contract;
• the release of a position for an employee who previously held it, who was unlawfully dismissed and reinstated by a court decision or labor inspectorate.

NOTE! Severance payments are due to almost any employee who is forced to leave their position if they are clean before the law and the provisions of the employment contract.

Managers are leaving too.

And, accordingly, they are entitled to an honestly deserved severance pay, but only on condition that they have no illegal actions on their account or have not made decisions that adversely affected the finances of the enterprise. In what cases is the labor allowance for top managers accrued:

• if they are removed from office by the decision of the founders without any fault (clause 2 of article 278 of the Labor Code of the Russian Federation);
• chief, his deputy, chief accountant, who decided to fire the changed owner of the business.

NOTE! If, by a court decision, a person (whether a manager or an ordinary employee) has been banned from engaging in certain types of activities, then, leaving this position, he also has the right to a “severance” payment.

Who will be left without benefits

There are several reasons why the dismissed are not legally required to pay severance pay. Most of them imply their own will or the guilty actions of the dismissed employee. The exception is short-term contracts.

These grounds do not imply corresponding payments:

• leaving according to one's own will (clause 3, part 1, article 77 of the Labor Code);
• the employee failed to pass the probationary period (part 1 of article 71 of the Labor Code);
• agreement of the parties;
• the initiative of the employer, if the misconduct of the dismissed person provides for an extreme measure of administrative responsibility (Article 81 of the Labor Code);
• inconsistency with the position held by the employee;
• when the contract concluded for 2 months or less comes to an end.

What amounts can be expected?

The amount of the accrued severance pay is calculated in accordance with the following factors:

1. Average monthly income.
2. The number of days in the compensation period, excluding weekends and holidays.
3. Territorial location of the enterprise.

ATTENTION! Since the essence of this payment is support in the first two months of a new job, only working days are taken into account. The more days off and holidays in the compensated month, the lower the benefit will be.

A period of 2 weeks, a month or 90 days after dismissal can be paid.

Salary for 14 days relies on the following categories of dismissed:

• upon dismissal on medical advice;
• drafted into the armed forces;
• in case of refusal to move to a new place, if the organization moves there;
• when a former employee is reinstated;
• unwillingness to work in changed conditions;
• "Conscripts", during which the enterprise is liquidated or its staff is reduced.

Earnings for 1 month relies:

• when canceling employment contracts drawn up with certain violations;
• upon complete dismissal due to the termination of the existence of the organization.

3 monthly salary will receive:

• managers, their deputies and chief accountants who leave their positions by decision of the business owners.

IMPORTANT! The amount of average earnings will be paid to the employee for another 2 months after hour X, if during this time he does not manage to find a new job. In some situations, the Employment Service decides to extend the payment for another 1 month (if within 14 days the dismissed person applied to this body and did not find a job after 2 months).

Some regions of Russia are in special conditions, for example, the Far North and areas equivalent to this area. If the enterprise from which the employee is leaving is located in a similar zone, then all payments are calculated differently, for example, the terms for maintaining salaries for the period of the job search can be increased to six months (Article 318 of the Labor Code of the Russian Federation).

Examples of calculating labor benefits

1. LLC, where Galuzinsky S.M. worked, is being liquidated. The employee earned 8000 rubles. per month. We calculate the average earnings per day: the number of working days per year was 220, multiply the salary by 12 months and divide by the number of days worked: 8000X12 / 220 \u003d 436.36 rubles. The basis for dismissal involves the accrual of Galuzinsky S.M. amounts per average monthly income. The next month is assumed to be 20 working days (no holidays). Thus, S. Galuzinsky receives 436.36X = 8727 rubles.
2. Salary Denisova V.A. - 10,000 rubles. per month On January 11, 2016, she was fired due to redundancy. For the previous billing year, she got 249 working days, she earned 12x10,000 \u003d 120,000 rubles, which means that an average of 120,000/249 \u003d 481.9 rubles per day. The next month (January 12 to February 12, 2016) will have 23 billable days. January 11 Denisova V.A. received a severance pay in the amount of 23X481.9 = 11083 rubles. A week later, she applied to the Employment Center, but until February 12, she failed to get a job, and she was again credited with benefits. From February 12 to March 12, 21 days without days off, minus March 8, so she is entitled to 20x481.9 = 9638 rubles for this period. If she had not started to involve the Employment Service or had registered after January 24, this payment would have been the last. In the work book of Denisova V.A. there was no record of a new job for the next month. Since she applied to the Employment Service in time, she is entitled to one more, last financial help. In the third billing month (from March 12 to May 12, 2016) 19 working days (except Saturdays and Sundays, May holidays are also excluded). Denisova V.A. will receive 19X481.9 = 9156 rubles. She is not entitled to any more payments.

IMPORTANT INFORMATION! The Labor Code of the Russian Federation provides a minimum of guaranteed financial support for those who have lost their jobs. The amount of the allowance can be revised upwards if such a possibility is noted in the collective agreement or local regulatory act of a particular enterprise.

What about tax payments?

This payment received on the last working day constitutes the income of an individual, but such income, as Art. 217 of the Tax Code of the Russian Federation, is not subject to income tax if the amount is accrued in the amount established by law. Insurance and pension contributions on the amount of benefits enshrined in the Labor Code are also not made.

If the enterprise, by its will, enshrined in the relevant documentation, increases the payable minimum prescribed in the law, then the excess is subject to taxation. Insurance premiums and personal income tax will have to be paid on the amount that exceeds the usual payments.

When an employee is fired, the employer has an obligation to pay him severance pay. Most of these cases are listed in article 178 of the Labor Code of the Russian Federation.

The legislator has established a different amount of such benefits - from two weeks of average earnings and above. In this sequence, we will consider the cases of their payment.

Biweekly average earnings in connection

With medical opinion

Upon termination of the employment contract in connection with the recognition of the employee as completely incapable of working in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation (clause 5, part 1, article 83 of the Labor Code of the Russian Federation), the employer, by virtue of paragraph 6 of part 3 of article 178 of the Labor Code of the Russian Federation is obliged to pay the employee a severance pay in the amount of two weeks of average earnings.

The issue of permanent disability is resolved by the institutions of medical and social expertise (the federal bureau of medical and social expertise, the main bureau of medical and social expertise, the bureau of medical and social expertise in cities and regions that are branches of the main bureaus).

When an employee of the I group of disability is established with a limitation of the ability to perform labor activity of the third degree, he is completely disabled. Group I is established with such significant disorders of body functions that the individual is not only really unable to continue working, but also needs outside help in everyday life.

When issuing an order to terminate an employment contract on this basis, an economic entity can use either an independently developed form or a unified form No. T-8. In the column "Basis" the details of the certificate of disability are indicated.

The last day of work of a disabled employee is the day preceding the day the disability group was established. The date of establishment of disability is the day from which a person recognized as disabled becomes entitled to an appropriate social pension.

An entry on the basis and reason for the termination of the employment contract, made in the work book, must be made in strict accordance with the wording of the Labor Code of the Russian Federation with reference to the article, part of the article, paragraph of the article of the code (part 5 of article 84.1 of the Labor Code of the Russian Federation, clause 14 of the Rules of Reference and storage of work books, production of work book forms and provision of employers with them, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225). In the case under consideration, the following is entered in the work book: “The employment contract was terminated due to the recognition of the employee as completely disabled in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, paragraph 5 of the first part of Article 83 of the Labor Code of the Russian Federation".

The record of the termination of the employment contract is certified by the signature of the employee responsible for maintaining work books, the seal of the employer and the signature of the employee being dismissed (clause 35 of the rules for maintaining work books).

An entry is made on the personal card (when using unified forms - form No. T-2) on the termination of the employment contract in connection with the recognition of the employee as completely disabled in accordance with the medical report.

The work book is issued to the employee on the day the employment contract is terminated (part 4 of article 84.1 of the Labor Code of the Russian Federation). Upon receipt of it, the employee must sign on the personal card and in the book of accounting for the movement of work books and inserts in them (clause 41 of the rules for maintaining work books).

An employee who is recognized as completely incapable of working in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, as mentioned above, is paid a severance pay in the amount of two weeks of average earnings.

The procedure for calculating the average wage, which is also used when determining the amount of severance pay, is provided for by Article 139 of the Labor Code of the Russian Federation. The regulation on the peculiarities of the procedure for calculating the average wage (approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922) clarified certain points of its calculation.

In any mode of operation, the calculation of the average salary of an employee is based on the salary actually accrued to him and the time he actually worked for the 12 months preceding the moment of payment. The collective agreement may also provide for other periods for calculating the average wage, if this does not worsen the position of employees.

To calculate the average wage, all types of payments provided for by the wage system used by an economic entity, regardless of the sources of these payments, are taken into account. The accruals listed in paragraph 5 of the above provision are not taken into account in the calculation. At the same time, the time for which such accruals were made is not taken into account.

The average daily earnings are calculated by dividing the amount of wages actually accrued for the billing period by the number of days actually worked during this period. The average earnings of an employee is determined by multiplying the average daily earnings by the number of days (calendar, working) in the period payable. To determine the amount of severance pay, it is necessary to multiply the average daily earnings by the number of working days in the period payable (decision of the Supreme Court of the Russian Federation dated May 25, 2006 No. GKPI06-366).

Severance pay is paid to the employee at the final settlement on the day of his dismissal.

The employee was dismissed on September 6, 2016 due to circumstances beyond the control of the parties - recognition of the employee as completely incapable of working in accordance with a medical report. The organization has a five-day work week. In the billing period (September 2015 - August 2016), the accrued amount of income taken into account when calculating the average wage amounted to 215,689 rubles, the number of days worked in the billing period was 144.

The average daily wage of an employee is 1497.84 rubles / day. (215,689 rubles : 144 days). The employee is required to pay severance pay in the amount of two weeks of average earnings for the period from 7 to 20 September. This period accounts for 10 working days according to the five-day working week calendar. Based on this, its amount is 14,978.40 rubles. (1497.84 rubles / day × 10 days).

Payment of all amounts due to the employee in the final settlement (salary for 4 working days, compensation for unused vacation days (Article 127 of the Labor Code of the Russian Federation), severance pay) is made on the day the employment contract is terminated, that is, on the day of dismissal (clause 1 of Art. 140 of the Labor Code of the Russian Federation) September 6.

It should be noted that when establishing an employee of II or III group of disability with limited ability to perform labor activities of the second or first degree, the employer should find out what specific restrictions on work this employee has and whether he can perform work in accordance with his position. To do this, you need to familiarize yourself with the individual program for the rehabilitation and habilitation of a disabled person (the form of the document was approved by order of the Ministry of Labor of Russia dated July 31, 2015 No. 528n).

The specified individual program is mandatory for organizations of all forms of ownership (Article 11 of the Federal Law of November 24, 1995 No. 181-FZ “On the Social Protection of Disabled Persons in the Russian Federation”).

The employer does not have the right to allow the employee to continue the previous work if such work is contraindicated for him. According to Article 73 of the Labor Code of the Russian Federation, an employee who, in accordance with a medical report, needs to be transferred to another job, with his written consent, the employer is obliged to transfer to another available job that is not contraindicated for this employee for health reasons. If the employee refuses to transfer or if the employer does not have such work, the employment contract is terminated in accordance with clause 8 of part 1 of article 77 of the Labor Code of the Russian Federation. And in this case, the employer must pay a two-week severance pay (paragraph 2, part 3, article 178 of the Labor Code of the Russian Federation).

Call for military service

Upon termination of labor relations in connection with the conscription of an employee for military service or sending him to an alternative civilian service replacing it (clause 1 of article 83 of the Labor Code of the Russian Federation), the dismissed person is also paid a severance pay in the amount of two weeks of average earnings (paragraph 3 of part 3 of article 178 of the Labor Code of the Russian Federation).

The labor legislation of the Russian Federation does not contain instructions on the term for terminating an employment contract on grounds related to conscription for military service (direction to alternative civilian service). It is logical to assume that the employment contract must be terminated no later than the date specified in the summons for the employee to appear at the military registration and enlistment office to be sent to the place of military service. In this case, the day of termination of the employment contract is the last day of work of the employee. At the same time, the employee can independently determine the last day of work by indicating it in the letter of resignation.

To terminate the employment contract on this basis, the employer issues an appropriate order upon presentation by the employee of the agenda of the military commissariat on conscription for active military service or enrollment in the Armed Forces of the Russian Federation.

If an employee is called up to perform alternative civilian service, then the reason for his dismissal will be the order presented by the employee for departure to the place of alternative civilian service. This order indicates the time period by which the employee must appear for alternative civilian service (Article 14 of the Federal Law of July 25, 2002 No. 113-ФЗ “On Alternative Civil Service”).

The employee presented the summons of the military registration and enlistment office to appear on June 8, 2016 at the recruiting station for military service. However, he submitted a letter of resignation on June 6. The collective agreement establishes:

the calculation period for calculating average earnings, including when paying a severance pay when an employee is called up for military service, different from that established by the labor legislation of the Russian Federation: 3 calendar months preceding the month of the occurrence of an event related to the calculation of average earnings;

the size of the severance pay upon dismissal in connection with conscription for military service - the average earnings per month.

For March, April and May, the dismissed person was credited 31,800, 59,600 and 32,300 rubles. These months he worked completely. The value of the average daily earnings when using the total duration of the billing period (12 months) amounted to 1983.69 rubles / day.

In the billing period, the employee worked 61 days. (21 + 21 + 19), where 21, 21 and 19 are the number of working days in March, April and May. Therefore, the value of his average daily earnings is 2027.87 rubles / day. ((31,800 rubles + 59,600 rubles + 32,300 rubles) : 61 days). Since this value exceeds the sum of the average daily earnings calculated in accordance with the Labor Code of the Russian Federation (2027.87\u003e 1983.69), it is this value that is used in determining the average earnings.

The period from June 9 to July 8 accounts for 21 working days (15 working days in June and 6 working days in July), then the desired amount of severance pay is 42,585.27 rubles. (2027.87 rubles/day × 21 days).

The final settlement with the employee includes:

wages for the hours actually worked in June - 4 working days;

compensation for all unused holidays. At the same time, the employee is entitled to full compensation (for 28 calendar days) if the duration of the employee’s working year at the time of his dismissal exceeded 5.5 months (clause 28 of the Rules on regular and additional holidays, approved by the Decree of the USSR NKT of 04/30/30 No. 169);

severance pay in the amount of 42,583.27 rubles.

Note that upon dismissal in connection with the conscription of an employee for military service, the employee cannot be withheld sums of money for unworked days of annual paid leave used in advance (paragraph 6 of article 137 of the Labor Code of the Russian Federation).

Labor legislation of the Russian Federation provides for the payment of a severance pay in the amount of two weeks of average earnings also upon dismissal in connection (paragraphs 4, 5 and 7, part 3, article 178 of the Labor Code of the Russian Federation):

with the refusal of the employee to transfer to another locality together with the employer (clause 9, part 1, article 77 of the Labor Code of the Russian Federation);
refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (clause 7, part 1, article 77 of the Labor Code of the Russian Federation);
with the reinstatement at work of an employee who previously performed this work (clause 2, article 83 of the Labor Code of the Russian Federation).

An employment contract is subject to termination in connection with the reinstatement of an employee who previously performed this work, if the dismissed employee:

was reinstated in his previous job by decision of the state labor inspectorate, court, higher authority;
in connection with the unlawful conviction or unlawful criminal prosecution, he demanded reinstatement in his previous job on the basis of the entry into force of the acquittal or the issuance of a decision (determination) to terminate the criminal case due to the absence of an event or corpus delicti or for lack of evidence of his participation in the commission of a crime.

An employment contract on this basis is terminated only if it is impossible to transfer the employee with his consent to another job (Article 83 of the Labor Code of the Russian Federation). Thus, the payment of severance pay is carried out upon termination of employment only after the employer offered the employee another job or he simply did not have another job for this employee.

The employer must pay a severance pay in the amount of two weeks of average earnings also upon dismissal of persons employed in seasonal work, if such dismissal is carried out in connection with a reduction in the number or staff of the organization's employees (Article 296 of the Labor Code of the Russian Federation).

Average earnings

One of the general grounds for termination of an employment contract is a violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation or other federal law, if this violation excludes the possibility of continuing work. In Article 84 of the Labor Code of the Russian Federation, the legislator provided a list of such cases. Among them:

the conclusion of an employment contract in violation of a court verdict depriving a particular person of the right to hold certain positions or engage in certain activities;
conclusion of an employment contract for the performance of work that is contraindicated for this person for health reasons in accordance with a medical report;
the absence of an appropriate document on education, if the performance of work requires special knowledge in accordance with a federal law or other regulatory legal act;
conclusion of an employment contract in violation of:

decisions of a judge, body, official authorized to consider cases of administrative offenses, on disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract;

restrictions, prohibitions and requirements established by federal laws regarding the involvement in labor activity of citizens dismissed from state or municipal service;

restrictions on engaging in certain types of labor activity established by the Labor Code of the Russian Federation, other federal law.

If the head of an economic entity, knowing about the existing restrictions on hiring this person, nevertheless concluded an employment contract with him, and subsequently terminates the employment relationship in accordance with paragraph 11 of Article 77 of the Labor Code of the Russian Federation, then the employer is obliged to pay the dismissed severance pay in the amount of the average monthly earnings (part 3 of article 84 of the Labor Code of the Russian Federation).

Depriving a specific person of the right to hold certain positions or engage in certain activities in accordance with Article 47 of the Criminal Code of the Russian Federation consists in prohibiting:

hold positions:

in the public service;

in local governments;

engage in certain professional or other activities.

This punishment is established for a period of one to five years as the main one and for a period of six months to three years as an additional one.

In order for the termination of an employment contract to be legal, the employer must have a valid court judgment against a particular employee. The verdict is considered to have entered into force if:

the time limit for filing an appeal has expired, or
this verdict was recognized as lawful and justified by the court of cassation.

If at the time of detecting a violation of the sentence, the period for which the employee was deprived of the right to hold certain positions has expired, the employment contract cannot be terminated on the grounds that the rules for concluding it have been violated, since this circumstance no longer excludes the continuation of work.

In some cases, when hiring, an employee must undergo a preliminary medical examination (these cases are established by the Labor Code of the Russian Federation and other federal laws). Thus, medical examinations must be carried out by employees engaged in work with harmful or dangerous working conditions, underground work, work related to traffic, and minors.

Preliminary medical examinations are carried out to determine the suitability of candidates for the assigned work and to prevent occupational diseases (Article 213 of the Labor Code of the Russian Federation). The employer, before concluding the contract, must make sure that the applicant accepted by him can be allowed to work and this work is not contraindicated for him for health reasons.

If, after the conclusion of the contract, it is revealed that the work provided for by it is contraindicated for the employee for health reasons (and this is certified by a medical certificate issued in the prescribed manner), the employment contract is subject to termination.

To justify the termination of the employment contract, the employer must have confirmation of the presence of medical contraindications for performing the work specified in the employment contract, at the time of admission. If this fact is revealed as a result of the employee undergoing a periodic medical examination, then the dismissal will be carried out on a different basis - due to circumstances beyond the control of the parties (clause 5, part 1, article 83 of the Labor Code of the Russian Federation).

As you can see, only a medical report can be the basis for dismissal - no certificate is suitable for this.

An employment contract is terminated due to a violation of the rules for its conclusion established by the Labor Code of the Russian Federation or other federal law, if a violation of these rules excludes the possibility of continuing work if the contract is concluded in the absence of an appropriate document on education and (or) qualifications, if the performance of work requires special knowledge in accordance with federal law or other regulatory legal act.

One of the documents presented at the conclusion of an employment contract is a document on education and qualifications or the availability of special knowledge (Article 65 of the Labor Code of the Russian Federation). This document is required if the job for which the applicant is applying requires special knowledge or training.

Persons who have successfully passed the final certification or the state final certification, in accordance with paragraphs 3 and 4 of Article 60 of the Federal Law of December 29, 2012 No. 273-FZ “On Education in the Russian Federation”, are issued documents on education or documents on education and qualifications.

Accordingly, an employee can confirm the level of necessary knowledge with a diploma, certificate and other documents (for example, a specialist certificate).

It should be noted that dismissal due to the lack of a document on education from a position for which its presence is provided only by local regulations or job descriptions, and not by federal laws or other regulatory legal acts, is illegal.

Checking the disqualification of persons hired to positions of executives of the organization is a mandatory procedure. When concluding an employment agreement (contract), the employer must request information on the existence of disqualification of an individual in the body that maintains the register of disqualified persons. Such a register is formed and maintained by the FKU "Nalog-Service" of the Federal Tax Service of Russia (clause 2 of the order of the Federal Tax Service of Russia dated December 19, 2011 No. ММВ-7-6/941).

Above average earnings

A special case for the employer is the termination of the employment contract in connection with the liquidation of the organization (clause 1 of article 81 of the Labor Code of the Russian Federation) or the reduction in the number or staff of the organization's employees (clause 2 of article 81 of the Labor Code of the Russian Federation). In these cases, the dismissed employee is paid a severance pay in the amount of the average monthly earnings, and he also retains the average monthly earnings for the period of employment (part 1 of article 178 of the Labor Code of the Russian Federation). There are two restrictions on this:

this period cannot exceed two months from the date of dismissal;
in the total amount of the retained average monthly earnings of the dismissed person, the payment of severance pay is taken into account.

The average salary for the period of employment is retained by the dismissed employee only if he has not entered into an employment relationship with a new employer. That is, in order for the dismissed person to be paid the average monthly salary for the period of employment for the second month, he must confirm that he did not work during this period. A confirmed document may be a work book in which there is no record of a new employment.

In exceptional cases, the average monthly salary is retained by the dismissed employee for another three months from the date of dismissal. This is carried out by decision of the public employment service agency, provided that the employee applied to the specified agency for employment within two weeks after the dismissal (part 2 of article 178 of the Labor Code of the Russian Federation). Thus, in order to receive average earnings, the dismissed person will need to submit a work book and a certificate from the employment service to the former employer.

After the dismissal of an employee, the average monthly salary retained for the period of employment is paid on the days when wages are issued in this organization.

An employee of the organization was dismissed due to staff reduction on August 31, 2016. The value of his average daily earnings is 1527.36 rubles / day.

The amount of the severance pay will be 33,601.92 rubles. (1527.36 rubles / day × 22 days), where 22 is the number of working days in September. This amount, as well as wages for August and compensation for unused vacation (if there are vacation days earned) will be included in the final settlement with the employee. The amount due for handover is paid on 31 August.

If the dismissed employee does not find a job before November 1, then he can apply to the organization to receive an average salary. To do this, the former employee must present a work book. Since there are 21 working days in October, the amount of average earnings will be 32,074.56 rubles. (1527.36 rubles / day × 21 days).

Unemployment of an employee before December 1 allows him to count on another amount of average earnings. But for this, in addition to submitting a work book, you will need to submit a certificate from the department of the employment service, which he had to register before September 14. If such a certificate is available, the dismissed employee will be paid the same 32,074.56 rubles. (1527.36 rubles / day × 21 days), since there are also 21 working days in November.

For certain categories of employees, the labor legislation of the Russian Federation establishes other amounts of severance pay and terms for maintaining the average monthly earnings upon dismissal in connection with the liquidation of the organization or a reduction in the number or staff of the organization's employees.

So, employees with whom an employment contract was concluded for a period of up to two months are not paid severance pay (Article 292 of the Labor Code of the Russian Federation). For seasonal workers, severance pay, as mentioned above, is paid in the amount of two weeks of average earnings (Article 296 of the Labor Code of the Russian Federation).

Employees released from organizations located in the regions of the Far North and areas equated to them, on these grounds, are entitled to the payment of a severance pay in the amount of the average monthly earnings. He also retains the average monthly salary for the period of employment, but not more than three months from the date of dismissal (including severance pay).

In exceptional cases, the average monthly salary is retained by the specified employee for the fourth, fifth and sixth months from the date of dismissal by decision of the public employment service agency, provided that the employee applied to this agency within a month after dismissal and was not employed by him.

On August 31, 2016, the administration of the organization located in Vorkuta fired an employee due to staff reduction. Payment of wages in the organization is carried out on the last day of the month.

On this day, at the final settlement, he was paid: wages for August, severance pay in the amount of average monthly earnings, compensation for unused vacation - and a work book was given to him.

Since the organization is located in the Far North, the dismissed person retains the average salary for the period of employment, but not more than six months, taking into account the monthly severance pay.

If the dismissed employee does not find a job before March 1, 2017, then on the last working day of each month, starting from October 31, he has the right to apply to the organization to receive average earnings. To do this, he will need to submit a work book as confirmation of the fact that a new employment contract has not been concluded, and in December, January and February, he will also need to submit a certificate from the employment service about his non-employment at the time of its issuance with information on his registration before September 30.

In accordance with paragraph 2 of Article 81 of the Labor Code of the Russian Federation mentioned above, an employment contract may be terminated by the employer when the number or staff of the organization's employees is reduced. At the same time, employees are warned about the upcoming dismissal due to a reduction in the number or staff of the organization's employees by the administration personally and against receipt at least two months before the dismissal (part 2 of article 180 of the Labor Code of the Russian Federation).

The employer, with the written consent of the employee, has the right to terminate the employment contract with him without notice of dismissal for two months with the simultaneous payment of additional compensation in the amount calculated in proportion to the time remaining before the expiration of the notice of dismissal (part 3 of article 180 of the Labor Code of the Russian Federation).

From a literal reading of this norm, it follows that termination of an employment contract with the consent of the employee (in writing) without an appropriate notice of dismissal (two months in advance) is the right of the employer, and not his obligation. Therefore, the employer can either use it or not resort to it.

If the employer is still inclined to use this right, then he himself must offer the employee to terminate the employment contract to reduce the number or staff of the organization's employees without a two-month notice, with the written consent of the employee to such termination of the relationship.

The additional monetary compensation provided for by the mentioned norm is mandatory, since it actually represents a compensation to the employee for earnings lost due to early dismissal. Consequently, the payment of the specified monetary compensation does not relieve the employer from the obligation to pay the dismissed employee all the payments provided for in Article 178 of the Labor Code of the Russian Federation, namely:

severance pay in the amount of average monthly earnings;
average monthly earnings for the second and third months after dismissal in case of non-employment until their end (for the third month - upon presentation of a certificate from the employment service office).

The organization has been downsizing since August 31, 2016. Employees were warned about this on June 27. Moreover, all of them were offered to terminate the contract without a two-month notice. One of the employees gave written consent to such dismissal from 15 July. The value of his average daily earnings is 1967.15 rubles / day.

salary for 11 working days worked in July;

compensation for dismissal without a two-month notice, determined in proportion to the time remaining until the expiration of the termination notice. For the period from July 16 to August 31 of the current year, there are 33 slaves. days (10 + 23), where 10 and 23 are the number of working days in July and August. Then the desired value is 64,915.95 rubles. (1967.15 rubles / day × 33 days);

severance pay paid in connection with the reduction of staff - 43,277.30 rubles. ((1769.15 rubles / day × 22 days), where 22 is the number of working days in September);

compensation for unused vacation (in the presence of earned vacation days).

If the dismissed employee does not get a job before November 1, then he can apply to the organization to receive average earnings, presenting a work book as a supporting document. The amount of average earnings is 41,310.15 rubles. ((1967.15 rubles / day × 21 days), where 21 is the number of working days in October).

If an employee does not find a job before December 1, then he can also apply to the organization to receive average earnings. The accounting department pays the amount due to him, provided that the dismissed employee:

submitted a work book and a certificate from the employment service department.

And this time he is entitled to the same 41,310.15 rubles. (1967.15 rubles / day × 21 days), since there are also 21 working days in November.

Note that for the rest of the employees, the last working day is August 31. And from this date, two and three months are counted, for which the payment of average earnings is due if they are not employed during this period.

The legislator in the Labor Code of the Russian Federation established several more norms that oblige employers to pay compensation to those who are laid off. One of them concerns the head of the organization, his deputies and the chief accountant dismissed by the new owner. If the new owner decides to terminate the employment contracts with these employees, then he is obliged to pay them compensation in the amount of at least three times the average monthly salary of the employee (Article 181 of the Labor Code of the Russian Federation).

If it is impossible to provide the relevant job (position) at the previous place of work:

legal successor (in case of reorganization of the organization);
all-Russian (interregional) trade union (in case of liquidation of the organization) -

retain for this employee his average earnings for the period of employment, but not more than six months, and in the case of study or retraining - for up to one year (Article 375 of the Labor Code of the Russian Federation and Article 26 of Federal Law No. 10-FZ dated 12.01.96 " On trade unions, their rights and guarantees of activities).

An employment contract or a collective agreement may provide for other cases of payment of severance pay, as well as establish increased amounts of severance pay (part 4 of article 178 of the Labor Code of the Russian Federation).

Taxation issues

When determining the tax base for income tax, the composition of labor costs includes accruals to dismissed employees, including in connection with the reorganization or liquidation of the taxpayer, the reduction in the number or staff of the taxpayer's employees (clause 9, article 225 of the Tax Code of the Russian Federation). Accruals to dismissed employees for the purposes of paragraph 9 of Article 255 of the Tax Code of the Russian Federation are recognized, in particular, severance benefits paid by the employer upon termination of the employment contract, provided for by employment contracts and (or) separate agreements of the parties to the employment contract, including agreements on termination of the employment contract, and as well as collective agreements, agreements and local regulations containing labor law norms.

The above version of the norm of paragraph 9 of Article 255 of the Tax Code of the Russian Federation came into force on January 1, 2015 (subparagraph “a” of paragraph 16 of Article 2, paragraph 1 of Article 4 of the Federal Law of November 29, 2014 No. 382-FZ “On Amendments to parts one and two of the Tax Code of the Russian Federation).

The possibility of accounting from January 1, 2015, accruals to dismissed employees, in particular, severance pay made by the employer upon termination of the employment contract, provided for by employment contracts and (or) separate agreements of the parties to the employment contract, including agreements on termination of the employment contract, as well as collective agreements, agreements and local regulations containing labor law norms, in the expenses when determining the taxable base for income tax, the Ministry of Finance of Russia confirmed in a letter dated 14.01.16 No. 03-03-06/2/683.

Thus, all accrued severance pay and retained average earnings in examples 1-5 are included in tax-deductible labor costs.

The amounts of payments related to the dismissal (clause 3 of article 217 of the Tax Code of the Russian Federation):

severance pay and
average monthly earnings for the period of employment, -

are not exempted from personal income tax in the part exceeding in general three times the average monthly salary (six times - for employees dismissed from organizations located in the regions of the Far North and areas equated to them). This rule also applies to compensation to the head, deputy heads and chief accountant of the organization.

It follows from this that the amount of these payments in the part not exceeding the specified limit value is exempt from taxation.

The fact that compensation payments related to the dismissal of employees, which include, among other things, severance pay and the amount of average monthly earnings paid in accordance with Article 178 of the Labor Code of the Russian Federation, are exempt from personal income tax on the basis of paragraph 3 of Article 217 of the Tax Code of the Russian Federation in a total amount that does not generally exceed three times the average monthly salary (six times the average monthly salary for employees laid off from organizations located in the Far North and equivalent areas), confirmed by the Ministry of Finance of Russia in letters dated February 12, 2016 No. 03- 04-06/7581, dated 02.12.16 No. 03-04-06/7535. Amounts exceeding three times the size (six times the size) of the average monthly earnings are subject to personal income tax in the prescribed manner.

In this regard, the financiers explained that for the purposes of applying the said paragraph 3 of Article 217 of the Tax Code of the Russian Federation, it is necessary to sum up all payments made to the employee upon dismissal, with the exception of compensation for unused vacation.

Recall that compensation for unused vacation is not exempt from personal income tax by virtue of the same paragraph 3 of Article 217 of the Tax Code of the Russian Federation.

At the same time, in letter No. 03-04-06 / 7535, it was clarified that in the amount exempted from personal income tax, it is necessary to take into account additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal, paid in accordance with Article 180 of the Labor Code of the Russian Federation .

Continuation of example 5

Let us clarify the condition: the employee was registered with the employment service on July 25, until December 1 he did not find a job.

Due to the fact that the employee did not find a job before December 1, 2016, the total amount of payments associated with his dismissal due to staff reduction amounted to 190,813.55 rubles. (64,915.95 + 43,277.30 + 41,320.15 + 41,310.15).

Income is exempted from personal income tax in a total amount not exceeding a total of three times the average monthly earnings. The last day of work of the employee was July 15. For the period from July 16 to October 15, there are 65 slaves. days ((10 + 23 + 22 + 10), where 10, 23, 22 and 10 are the number of working days in July, August, September and October). Consequently, the amount of 127,864.75 rubles is exempt from personal income tax. (1967.15 rubles / day × 65 days). The difference between the paid income and this amount, 62,948.80 rubles. (190,813.55 - 127,864.75) is included in the taxable income of the dismissed employee.

Moreover, it is included in parts in October and November: in November, the entire accrued amount of 41,310.15 rubles is taken into account, in October - 21,638.65 rubles. ((1967.15 rubles / day × 11 days) \u003d (62,948.80 - 41,310.15)).

Therefore, the employee was paid:

RUB 38,497.15 ((41 310.15 - 2813), where 2813 rubles ((A rub. + 21 638.65 rubles) × 13% - A rub. × 13%) - the amount of personal income tax withheld in October, A rub. and ( A rub × 13%) - the amount of the taxable base for personal income tax and the amount of personal income tax withheld as of October 1) - in October;

RUB 35,910.15 ((41 310.15 - 5370), where 5370 rubles (A rub. + 21 638.65 rubles + 41 310.15 rubles) × 13% - (A rub. × 13% + 2813) - the amount withheld personal income tax) - in November.

The restriction on the non-taxable amount in the amount of three (six) times the average monthly earnings was introduced in paragraph 3 of Article 217 of the Tax Code of the Russian Federation from January 1, 2012 by Federal Law No. 15 of the Law of the Russian Federation “On the Status of Judges in the Russian Federation” and the invalidation of certain provisions of the legislative acts of the Russian Federation” (subparagraph “a”, paragraph 7, article 1).

The Judicial Collegium of the Supreme Court of the Republic of Komi, in ruling No. 33-1663AP/2012 of May 10, 2012, indicated that the additional compensation provided for by Part 3 of Article 180 of the Labor Code of the Russian Federation is not mentioned in the above-mentioned Law No. 330-FZ. From this, the judges concluded that the additional compensation provided for by Part 3 of Article 180 of the Labor Code of the Russian Federation, paid after January 1, 2012, is not subject to personal income tax.

The provisions of the mentioned norm of paragraph 3 of Article 217 of the Tax Code of the Russian Federation, in the opinion of financiers, apply regardless of the basis on which the dismissal is made.

For the purpose of applying paragraph 3 of Article 217 of the Tax Code of the Russian Federation under consideration, all payments of severance pay and retained earnings made in connection with the dismissal of an employee of the organization are taken into account in total, including if these payments are made in different tax periods (letter of the Ministry of Finance of Russia dated 07.04 .14 ​​No. 03-04-06/15454).

End of example 4

Despite the fact that the payments of severance pay and retained earnings fall on two different tax periods - 2016 and 2017, the aggregate paid from August to February is compared with the maximum six times the average monthly salary.

An identical norm to limit the non-taxable set of payments related to the dismissal of an employee, insurance premiums to the Pension Fund of the Russian Federation, the FSS of Russia and the FFOMS, as well as to the FSS of Russia for "injuries", is available in federal laws:

dated July 24, 2009 No. 212-FZ “On insurance premiums to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund” (subclause 2 “e”, clause 1, article 9) and
dated July 24, 1998 No. 125-FZ “On compulsory social insurance against industrial accidents and occupational diseases” (paragraph 8, clause 2, article 20.2).

The Ministry of Labor of Russia, in a letter dated October 14, 2015 No. 17-4 / V-508, indicated that if the severance pay paid to an employee, provided for by an employment contract (additional agreement to it), does not exceed three times the average monthly salary of an employee, then insurance premiums for such payment are not charged.

The leadership of the FSS of Russia in the explanations “On the taxation of insurance premiums for certain types of payments” (given in the annex to the letter of the FSS of Russia dated 14.04.15 No. 02-09-11 / 06-5250) explained that all compensation payments related to the dismissal of employees (weekend allowances, compensations, average monthly earnings for the period of employment), regardless of the basis on which the dismissal is made, accrued after January 1, 2015, are exempted from taxation of insurance premiums in an amount not exceeding in total three times the average monthly earnings or six times the average monthly earnings for workers dismissed from organizations located in the regions of the Far North and equivalent areas (question 1).

End of Example 5

When paying in October the retained average earnings, part of it, 21,638.65 rubles, is taken into account when determining the taxable base when calculating insurance premiums to the PFR, FFOMS and FSS of Russia, including for “injuries”.

The calculated amount of retained earnings for November is fully included in the base for calculating insurance premiums to the Pension Fund of the Russian Federation, FFOMS and the FSS of Russia, including for “injuries”.

An entry on the basis and reason for the termination of the employment contract, made in the work book, must be made in strict accordance with the wording of the Labor Code of the Russian Federation with reference to the article, part of the article, paragraph of the article of the code.

The work book is issued to the employee on the day the employment contract is terminated (part 4 of article 84.1 of the Labor Code of the Russian Federation).

When establishing an employee of II or III group of disability with limited ability to perform labor activities of the second or first degree, the employer should find out what specific restrictions on work this employee has and whether he can perform work in accordance with his position.

To terminate an employment contract on the grounds related to conscription for military service, the employer issues an appropriate order upon presentation by the employee of the summons of the military commissariat for conscription for active military service or enrollment in the Armed Forces of the Russian Federation.

Upon dismissal in connection with the conscription of an employee for military service, the employee cannot be withheld sums of money for unworked days of annual paid leave used in advance (paragraph 6 of article 137 of the Labor Code of the Russian Federation).

In order for the termination of an employment contract to be legal, the employer must have a valid court judgment against a particular employee.

The employer, before concluding the contract, must make sure that the applicant accepted by him can be allowed to work and this work is not contraindicated for him for health reasons.

Dismissal due to the lack of a document on education from a position for which its presence is provided only by local regulations or job descriptions, and not by federal laws or other regulatory legal acts, is illegal.

The payment of severance pay in the amount of the average monthly earnings and the retained average monthly earnings is made by the employer at the previous place of work at the expense of this employer (Article 318 of the Labor Code of the Russian Federation).

Termination of the employment contract with the consent of the employee (in writing) without an appropriate notice of dismissal (two months in advance) is the right of the employer, and not his obligation. Therefore, the employer can either use it or not resort to it.

An employee released from work in an organization in connection with his election to an elective position in the trade union body of this organization, after the expiration of his term of office, must be provided with the previous job (position), and in its absence - with the consent of the employee, another equivalent job (position) in that the same organization.

When determining the tax base for income tax, the composition of labor costs includes accruals to dismissed employees, including in connection with the reorganization or liquidation of the taxpayer, reduction in the number or staff of the taxpayer's employees.

Compensation for unused vacation is not exempt from personal income tax by virtue of the same paragraph 3 of Article 217 of the Tax Code of the Russian Federation.

Additional compensation provided for by Part 3 of Article 180 of the Labor Code of the Russian Federation, paid after January 1, 2012, is not subject to personal income tax.

If the severance pay paid to the employee, provided for by the employment contract (supplementary agreement to it), does not exceed three times the average monthly salary of the employee, then insurance premiums for such payment are not charged.

Evgeny PETROV, tax consultant

Severance pay is a type of payment upon dismissal of an employee, which is paid separately from the transfer of wages and other amounts.

However, these payments are not received in every case of dismissal, but only on separate grounds.

What are the grounds for receiving severance pay, how is the amount of the allowance calculated, and in what time frame is the employer obliged to pay? We will answer these and other questions in the article.

Grounds for payment of severance aid

Upon dismissal for any of the reasons specified in Chapter 13 of the Labor Code, the employee is entitled to payment of wages for all days worked.

Also, in case of leaving work, all vacation days that were not used are compensated.

This also applies to annual, as well as additional vacation days for the past year of work.

As for the severance pay, this amount is not allowed in all cases.

The payment of severance assistance is necessarily compensated in the event of liquidation or reduction of staff at the enterprise, if these events imply a reduction in the staff or the total number of employees.

In this case, the amount of the severance pay will be the average earnings for 1 month.

Severance pay in the amount of two weeks average earnings in accordance with Art. 178 of the Labor Code is due upon dismissal for the following reasons:

• when reorganizing or liquidating an organization for seasonal workers;
• in case of refusal to work in a new position, if the previous work is contraindicated for him for health reasons;
• refusal to transfer to work in another region together with the enterprise;
• when a subordinate is called up for military service (including alternative service);
• in cases of refusal of new working conditions;
• upon reinstatement of a former employee, if there is a corresponding court decision.

On the basis of Art. 84 of the Labor Code, payment of benefits in the amount of one salary is payable in cases of violation of the rules for signing an employment agreement through no fault of the employee.

The payment of assistance in the amount of three monthly salaries is due upon dismissal due to a change in the owner of the director, deputy director and chief accountant.

Upon dismissal of the head and if he did not commit guilty acts during his work, he is entitled to the payment of a severance pay in the amount established in the employment contract.

However, this amount should at least be at least the amount of average earnings for 3 months.

Benefit payments in other cases

The employer has the right to set higher severance pay.

Such a decision is reflected in the collective agreement or directly in the employee's employment contract.

In practice, most often, employers do not indicate the amount of severance assistance, but the period within which payments are made.

For example, for 3, 4, 5 months, if during this time the employee does not have time to find a job. The head can provide for the payment of benefits in the local acts of the enterprise on other grounds for which "compensation" is not assigned in the Labor Code of the Russian Federation.

For example, assign the payment of assistance upon dismissal by agreement of the parties. For example, a collective agreement may contain the following wording:

“In case of dismissal by agreement of the parties (clause 1 of article 71 of the Labor Code), the employee is entitled to a severance pay in the amount of 3 to 6 salaries.”

Severance pay is paid in an amount not less than that established by law. Deterioration of working conditions is unacceptable, otherwise the employer will bear administrative responsibility.

Severance pay calculation

As already mentioned, severance pay under an employment contract is calculated in the amount of the average salary.

To calculate this amount, not only the amount of the salary is taken into account, but also bonuses, surcharges, bonuses.

However, the amount of compensation for sick leave, vacation, etc. are not included in the calculation.

For calculations, the employee's salary for the 12 months that precede the dismissal is added.

When working part-time, the calculation is carried out only for the working week. The employee is paid severance pay, which is calculated in the following way: the amount received for 12 months is divided by 365 days, the result is multiplied by 30.4. The amount that will be received and payable in one month.

However, it is worth clarifying that after you have been paid severance pay upon dismissal on a reduction, severance assistance is also due for the second month, but only if the employee has not yet had time to apply for a new job.

Moreover, there is a chance to receive benefits for the third month, but this is only possible by decision of the employment service and provided that the citizen is registered as unemployed no later than 2 weeks after leaving work.

The nuances of paying severance pay

Many mistakenly believe that severance pay is not due to workers of retirement age, since if a citizen receives a pension, he is not entitled to receive payments as unemployed in the employment center.

In fact, a pensioner has the same rights to receive severance pay as other employees.

The employer undertakes to pay the pensioner not only compensation for the first month, but also for the second month, if the former employee did not take another job.

On the Day of Foreign Citizens, severance pay compensation is also provided in the same amount as for Russian citizens.

The only condition is that a foreigner must be registered in compliance with all the requirements of Russian labor legislation.

Exit assistance is also due, regardless of which payment system is used at the enterprise. Longer terms for payment of benefits are established for all those who work in the Far North and areas equivalent to the Far North.

Moreover, according to the decision of the employment service, workers in the Far North and equated regions are also paid for the fourth, fifth and sixth month, if they were not employed during this period and applied to the employment service within a month after leaving work.

Payment terms

As a general rule, severance pay is paid on the day employees leave.

On the same day, management pays wages, compensation for unused vacation, other compensation amounts and a work book.

Compensation for reduction for the second month on the day of leaving work is not issued and the employee cannot demand its payment on the day of calculation.

The order of payment for the 2nd month is as follows:

1. The employee must contact the former employer after a month from the date of dismissal.
2. At the request of the employer, it is necessary to present a work book, where there is no record of acceptance for a new job.
3. After that, the payment for the second month is made.

The procedure for receiving severance pay for the third month does not differ from receiving "compensation" for the second month. However, if there is an agreement on the payment of severance pay for a longer period, which is enshrined in an employment or collective agreement, then the former employee has the right to demand their payment.

If the employer refuses to make payments, the dismissed employee has the right to file a complaint with the labor inspectorate, as well as with the prosecutor's office and the court.

For each day of delay in severance pay, as well as wages, vacation pay, etc., the employer will be required to pay all these amounts with interest.

In a claim for severance assistance, you can ask not only for compensation for this amount, but also to demand from the employer who violated the norms of labor law, a certain amount for non-pecuniary damage.

When filing a claim, you must also attach to it:

• a copy of the dismissal order;
• salary certificate;
• if available, provide a written refusal from the employer to make payments;
• copy of the claim for the defendant.

For such a violation, the head may incur administrative liability and pay a fine. For legal entities, the amount of the fine varies from 30 thousand rubles. up to 50 thousand rubles Individual entrepreneurs pay less - from 1000 to 5000 thousand.

According to the rules of the Tax Code, personal income tax is not withdrawn from the amount of severance pay. But there are some exceptions. Since 2012, taxation on benefits will be applied when the amount of assistance is equal to three times the average salary of the subordinate.

The tax is also withdrawn from the allowances of workers in the Far North and other equated areas, but only for an amount that is more than six times the average monthly salary. The position of employees or the grounds for dismissal when deducting tax does not matter.

The dismissal of an employee means the termination of an employment contract. The dismissal of employees is carried out on the grounds provided for in Ch. 13 of the Labor Code of the Russian Federation. In all cases, the day of dismissal of the employee is the last day of his work.

Upon dismissal for any of the reasons provided for by the Labor Code of the Russian Federation, the employer must pay off the employees. The Labor Code of the Russian Federation establishes the procedure and conditions for the payment of severance pay and compensation due to employees upon dismissal. Let us consider in more detail who and what payments are due upon dismissal and how to calculate them.

Upon dismissal, the employee must be paid:

1) wages for the time actually worked in the month of dismissal;

2) compensation for unused vacation (for all unused vacations);

3) severance pay (in cases specified by law).

Payment of wages

Dismissed employees are paid wages within the time limits established by Art. 140 of the Labor Code of the Russian Federation, namely no later than the day of dismissal. If the employee did not work on the last working day, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a demand for final settlement. In the event of a dispute about the amount of the amounts due to the employee upon dismissal, the employer is obliged in accordance with Art. 140 of the Labor Code of the Russian Federation, the deadline for paying the amount not disputed by him.

Upon dismissal, as already noted, the employee is paid wages for the time actually worked in the month of dismissal, i.e. the basic salary, depending on the system of remuneration established in the organization with allowances, additional payments and bonuses.

Compensation for unused vacations

In addition, upon dismissal of an employee in accordance with Art. 127 of the Labor Code of the Russian Federation, monetary compensation is paid for all unused vacations, including for all past years. At the same time, instead of paying compensation, at the written request of the employee and with the consent of the employer, unused vacations may be granted to him with subsequent dismissal. The exception is cases of dismissal for guilty actions. In this case, the day of dismissal is considered the last day of vacation. The issuance of all amounts due to the employee from the employer, as well as the work book with a record of dismissal made in it, is made before the employee goes on vacation. During the period of illness during the period of vacation with subsequent dismissal, the employee is paid temporary disability benefits, but the vacation is not extended by the number of days of illness.

It must be remembered that according to Art. 124 of the Labor Code of the Russian Federation, it is prohibited not to provide annual paid leave for two consecutive years. Therefore, if the employee has not been on vacation for more than two years, then the organization will have to justify why this happened. Such justification may be an employee's statement on the transfer of vacation for the current years to the next working years.

The number of days payable upon dismissal is calculated based on the number of months worked in the working year, i.e. the calculation of the period for the right to receive leave begins from the date when the employee began work, and not from the beginning of the calendar year.

If the resigning employee has not completed a period that gives the right to full compensation for unused vacation, compensation is paid in proportion to the days of vacation for the months worked. In this case, an incompletely worked month is not taken into account if the number of days worked is less than half a month. If more than half a month is worked, then it is taken into account as a whole month.

Example

Nikolaev I.P. dismissed from December 10, 2005. The vacation was used until March 15 of the same year. In the current working year, 8 full months and 26 days have been worked. Since more than half of the hours worked in the month not fully worked, this month is taken into account in the calculation as a whole. Therefore, unused vacation for 9 months is subject to compensation.

Compensation is paid for 21 days (28:12) x 9.

If the vacation for the current working year was provided in advance, and by the time of dismissal the working year had not been fully worked out, then the amount of average earnings for unworked vacation days in accordance with Art. 137 of the Labor Code of the Russian Federation is subject to deduction from the employee's salary. Withholding is not made if the employee leaves as a result of:

liquidation of an organization or termination of activities by an employer - an individual (clause 1 of article 81 of the Labor Code of the Russian Federation);

reduction in the number or staff of employees of the organization (clause 2 of article 81 of the Labor Code of the Russian Federation);

inconsistency of the employee with the position held or the work performed due to the state of health in accordance with the medical report (subparagraph “a”, paragraph 3 of article 81 of the Labor Code of the Russian Federation);

change of the owner of the property of the organization (this applies to the head of the organization, his deputies and the chief accountant) (clause 4 of article 81 of the Labor Code of the Russian Federation);

conscription of an employee for military service or sending him to an alternative civilian service that replaces it (clause 1, article 83 of the Labor Code of the Russian Federation);

reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2, article 83 of the Labor Code of the Russian Federation);

recognition of an employee as completely disabled in accordance with a medical report (clause 5, article 83 of the Labor Code of the Russian Federation);

death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as dead or missing (clause 6 of article 83 of the Labor Code of the Russian Federation);

the onset of emergency circumstances that prevent the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by the decision of the Government of the Russian Federation or the state authority of the relevant subject of the Russian Federation (clause 7 of article 83 of the Labor Code RF).

The average daily earnings are calculated according to the rules established by Art. 139 of the Labor Code of the Russian Federation.

Example

Fedorov S.G. dismissed from December 10, 2005. For the working year - from July 1, 2005 to June 30, 2006 - leave was granted from August 1 to August 28, 2005. When calculating vacation pay for the billing period (May, June, July), 15 000 rub.

The average daily earnings for the billing period amounted to:

15 000 rub. : 3: 29.6 = 168.91 rubles.

The amount of vacation pay was: 28 x 168.91 rubles. = 4,729 rubles.

Until the moment of dismissal in the working year, 5 full months and 10 days were worked, which are not taken into account in the calculation. 7 months have not been worked, the amount of vacation pay paid for this period must be withheld.

Vacation for the unworked period: (28/12) x 7 = 16.33 days.

The amount of vacation pay to be withheld: 16.33 days x 168.91 rubles = 2,758 rubles.

Severance payment

Employees upon termination of the employment contract in accordance with Art. 178 of the Labor Code of the Russian Federation, severance pay is paid.

A dismissed employee is paid a severance pay in the amount of the average monthly earnings, and he also retains the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including the severance pay) upon termination of the employment contract due to:

with the liquidation of the organization (clause 1 of article 81 of the Labor Code of the Russian Federation);

reduction in the number or staff of employees of the organization (clause 2 of article 81 of the Labor Code of the Russian Federation).

Severance pay is paid to laid-off employees, regardless of their subsequent employment, if there are circumstances provided for by the Labor Code of the Russian Federation. The average salary for the period of employment is retained by the dismissed employee only if he has not entered into an employment relationship with a new employer. That is, in order for an employee to be paid the average monthly salary for the period of employment for the second month, he must confirm that he did not work during this period (for example, submit a work book that does not contain a record of new employment).

In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the body of the employment service. This is established by Art. 178 of the Labor Code of the Russian Federation. To do this, the employee must apply to this body within two weeks after the dismissal, and if the employee is not employed by the employment service, he retains his average monthly earnings for the third month from the date of dismissal. In this case, in order to receive average earnings, the employee must submit a work book and a certificate from the employment service to the former employer.

After the dismissal of an employee, the average monthly salary retained for the period of employment is paid on the days when wages are issued in this organization. At the same time, the dismissed employee presents a work book.

For certain categories of employees, the legislation establishes other terms for maintaining the average monthly earnings upon dismissal on these grounds. In Art. 318 of the Labor Code of the Russian Federation, a provision is fixed on the preservation of employees released from organizations located in the regions of the Far North and areas equated to them, in connection with their liquidation or a reduction in the number or staff of employees of the organization, average earnings for the period of employment within six months from the date of dismissal from including monthly severance pay. It should be noted that a similar provision was set out in Art. 6 of the Law of the Russian Federation of February 19, 1993 No. 4520-1 "On State Guarantees and Compensations for Persons Working and Living in the Far North and Equivalent Areas" (hereinafter - Law No. 4520-1), however, according to the Federal Law of On August 22, 2004 No. 122-FZ, the said article of Law No. 4520-1 became invalid

According to Art. 84 of the Labor Code of the Russian Federation, the employer pays the employee a severance pay in the amount of the average monthly earnings upon termination of the employment contract due to a violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation or other federal law through no fault of the employee, if this violation excludes the possibility of continuing work (clause 11 of Art. 77 of the Labor Code of the Russian Federation).

In case of liquidation of the organization, reduction of the number or staff of the organization's employees in accordance with Art. 180 of the Labor Code of the Russian Federation, the employer, with the written consent of the employee, has the right to terminate the employment contract with him without a two-month notice of dismissal with the simultaneous payment of additional compensation in the amount of two-month average earnings.

In case of termination of the employment contract with the head of the organization, his deputies and the chief accountant in connection with the change of the owner of the organization, the new owner in accordance with Art. 181 of the Labor Code of the Russian Federation is obliged to pay compensation to the specified employees in the amount of not less than three average monthly earnings of the employee. The payment of such compensation is an obligation for the new owner of the organization's property, not a right.

Seasonal workers are paid severance pay in accordance with Art. 296 of the Labor Code of the Russian Federation in the amount of a two-week average earnings upon termination of an employment contract due to:

With the liquidation of the organization;

Reducing the number or staff of the organization's employees.

According to Art. 178 of the Labor Code of the Russian Federation, severance pay in the amount of two weeks of average earnings is paid to employees upon termination of an employment contract:

at the initiative of the employer in connection with the inconsistency of the employee with the position held or the work performed due to a state of health that prevents the continuation of this work (subparagraph “a”, paragraph 3 of article 81 of the Labor Code of the Russian Federation);

in connection with the conscription of an employee for military service or sending him to an alternative civilian service that replaces it (clause 1, article 83 of the Labor Code of the Russian Federation);

in connection with the reinstatement at work of an employee who previously performed this work (clause 2, article 83 of the Labor Code of the Russian Federation);

in connection with the refusal of the employee to transfer in connection with the relocation of the employer to another locality (clause 9, article 77 of the Labor Code of the Russian Federation).

Severance pay is paid to the employee on the day of his dismissal.

An employment or collective agreement may provide for other cases of payment of severance pay, as well as establish their increased amounts. This is provided for in Art. 178 of the Labor Code of the Russian Federation.

The calculation of the average wage of an employee is carried out in accordance with Art. 139 of the Labor Code of the Russian Federation based on the actual accrued wages and the actual hours worked for the 12 months preceding the moment of payment. According to Art. 139 of the Labor Code of the Russian Federation, the collective agreement may provide for other periods for calculating the average wage, if this does not worsen the position of employees.

The amount of the severance pay is determined by multiplying the average daily earnings by the number of working days according to the calendar of the five-day (six-day) working week falling on the payment period, i.e. for the first calendar month from the date of dismissal, excluding holidays.

Example

On April 4, the employee was dismissed at the initiative of the employer due to inconsistency with the position held due to health reasons. The collective agreement provides for a settlement period for calculating average earnings - 3 calendar months (from the 1st to the 1st day) before the month of the event. The organization has a five-day work week. In the billing period (January-March), wages were accrued - 15,000 rubles. The number of days worked in the billing period (from January 1 to April 1) - 59.

In this case, the employee must pay severance pay in the amount of two weeks of average earnings for the period from 5 to 19 April.

Let's determine the average daily earnings of an employee: 15,000: 59 = 254.24 rubles.

Let's determine the size of the severance pay by multiplying the average daily earnings by the number of working days according to the five-day working week calendar falling on the payment period: 254.24 x 10 \u003d 2,542.4 rubles.

Thus, on the day of dismissal, the employee must receive a severance pay in the amount of 2,542.4 rubles.

TAXATION OF PAYMENTS UPON DISMISSAL

According to paragraph 3 of Art. 217 of the Tax Code of the Russian Federation (TC RF) are not subject to personal income tax (PIT) all types of compensation payments established by the current legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government (within the limits established in accordance with the legislation of the Russian Federation ) associated with the dismissal of employees, with the exception of compensation for unused vacation. Thus, the amount of accrued compensation for unused vacation upon dismissal is subject to personal income tax, and severance pay is not subject to personal income tax (within the limits established by the legislation of the Russian Federation) if, upon dismissal for one reason or another, the payment of severance pay is provided for by the current legislation.

According to Art. 178 of the Labor Code of the Russian Federation, an employment or collective agreement may provide for other cases of payment of severance pay, as well as establish their increased amounts. Wherein:

1) in case of payment of severance pay in an amount exceeding the amount established by law, the excess amount is subject to personal income tax;

2) in case of payment of severance pay on other grounds not provided for by the legislation of the Russian Federation, the amount of severance pay paid on such grounds is fully subject to personal income tax.

According to sub. 2 p. 1 art. 238 of the Tax Code of the Russian Federation, all types of compensation payments established by the legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government of compensation payments (within the limits established in accordance with the legislation of the Russian Federation) related to the dismissal of employees, including compensations for unused vacation. That is, UST is not charged for compensation for unused vacation, and the issue of taxing severance pay UST is resolved similarly to the issue of taxing severance pay with personal income tax: if the payment of severance pay is provided for by the legislation of the Russian Federation, the amount of severance pay is not subject to UST, otherwise UST for the amount of the severance pay benefits are calculated.

At the same time, it should be borne in mind that if the taxpayer's payments made to the employee do not reduce the tax base for income tax in the current reporting (tax) period, then such payments in accordance with paragraph 3 of Art. 236 of the Tax Code of the Russian Federation are not subject to UST taxation.

If the severance pay is not subject to UST taxation, insurance premiums for mandatory pension insurance are also not charged. According to paragraph 2 of Art. 10 of the Federal Law of December 15, 2001 No. 167-FZ “On Compulsory Pension Insurance in the Russian Federation”, the object of taxation of insurance premiums is the object of taxation under the UST. On the same basis, insurance premiums for compulsory pension insurance and compensation for unused vacation are not charged.

In addition, insurance premiums for compulsory insurance against accidents at work and occupational diseases are not charged for compensation for unused vacation and severance pay (clause 1 of the List of payments for which insurance premiums to the Social Insurance Fund of the Russian Federation are not charged, approved by a government decree RF dated July 7, 1999 No. 765).

When calculating income tax in labor costs in accordance with Art. 255 of the Tax Code of the Russian Federation includes any accruals to employees in cash and (or) in kind, incentive accruals and allowances, compensation accruals related to the mode of work or working conditions, bonuses and one-time incentive accruals, expenses associated with the maintenance of these employees, provided for by the norms of the legislation of the Russian Federation , labor agreements (contracts) and (or) collective agreements.

Therefore, if the severance pay is provided for by labor legislation and is paid in the amount established by law, then the amount of such payments to the organization is included in labor costs.

In the case of payment of a severance pay to an employee in connection with dismissal on grounds for which the legislation does not provide for the payment of a severance pay, depending on whether such payments are provided for by an employment or collective agreement, the issue of including the amounts in the composition of labor costs taken into account when income taxation:

if the payment of severance pay is provided for by an employment or collective agreement, then such payments are included in the cost of wages on the basis of clause 25 of Art. 255 of the Tax Code of the Russian Federation;

if the payment of severance pay is not provided for by the labor or collective agreement, then such payments do not reduce taxable income.

When paying a severance pay in an amount exceeding the norm established by law, the issue of including such amounts in the composition of expenses taken into account when taxing profits is resolved in a similar way.

Compensation for unused vacation, paid in the amount established by labor legislation, refers to the organization's expenses for wages on the basis of clause 8 of Art. 255 of the Tax Code of the Russian Federation.

In addition, in accordance with paragraph 9 of Art. 255 of the Tax Code of the Russian Federation, labor costs also include accruals to employees released in connection with the reorganization or liquidation of the taxpayer, a reduction in the number or staff of the taxpayer's employees.

E.V. Abramova, methodologist-consultant of CJSC "BKR-Intercom-Audit"

Among the different types of benefits, there is the so-called severance pay upon dismissal. This cash equivalent is not paid to everyone who decides to quit, but only to those who are forced to do so due to circumstances.

severance pay

Article 178 of the Labor Code of the Russian Federation informs in which cases, upon termination of employment, an employee is entitled to monetary compensation. Severance pay upon dismissal is a sum of money to the person who received the calculation, assigned in accordance with the requirements of the law in the amount of the average monthly earnings or earnings for 2 weeks. The allowance in large amounts is assigned in certain cases regulated by the code (Article 181 of the Labor Code of the Russian Federation).

The head also has the right to issue a local order within his organization on the payment of material support to the resigning person.

In what cases is severance pay paid?

The payment of severance pay upon dismissal is assigned if the employment contract is canceled for the following reasons:

1. liquidation of the organization;
2. reduction in the number or staff of employees of the enterprise;
3. call for military or alternative service;
4. reinstatement by the court of an employee who previously held it;
5. refusal of another position (for example, in the event of disability);
6. unwillingness of the employee to move to another locality;
7. registration of an employment contract with errors made by the employer;
8. amendment of the contract;
9. dismissal of the director of the company by order of the founders;
10. change of ownership and termination of the contract with the head, other leading specialists.

In case of liquidation of the organization, reduction of the number and staff (does not apply to temporary workers), the allowance is assigned in the amount of average monthly salary. The average monthly salary is also paid to those hired under an employment contract drawn up with violations due to the fault of the management. Moreover, these conditions do not allow you to move to another job within the same enterprise or continue to work.

In all other cases, a two-week severance pay is paid upon dismissal.

Cases when a dismissed person loses benefits:

1. the employee violated the labor schedule (drunkenness, etc.);
2. the reduction procedure coincided with the probationary period;
3. dismissal at will or by agreement of the parties;
4. the employment contract was concluded for 1-2 months.

Upon dismissal for any of the above reasons, he receives all other payments prescribed by law, including wages, vacation pay (if the vacation was not used), and so on. The calculation takes place on the next day after the application.

What determines and how the amount of the allowance is calculated

The amount of severance pay upon dismissal depends on the average earnings for the billing period. The settlement period in this case is the year preceding the dismissal.

The amount of compensation is calculated according to the formula:

Compensation = average salary x work shifts in the pay period (month).

The accrual of severance pay upon dismissal is linked to the accepted rules:

1. compensation is accrued only for working days of the period for which it is issued (30 or 14 days);
2. sick leave, vacation pay, benefits, etc. cannot be included in the total annual earnings;
3. the rules for calculating the amount of benefits do not depend on the type of remuneration;
4. the month of dismissal is included in the billing period, when the day of dismissal coincides with the last working day of the month; if the dismissal does not fall on the final day of the month, it does not fall into the billing period.

The subvention is issued on the day of dismissal by a written order (order) of the head, issued earlier to justify the reason for dismissal from work.

No additional order is required.

If the day of dismissal is a working day, settlements, together with severance pay, are paid on the next. If the employee did not work on the day of dismissal, the settlement must be received no later than the day following the day the employee made a claim for payment of money (Article 140 of the Labor Code of the Russian Federation).

Payment of severance pay upon liquidation or reduction

Labor Code Art. 178 secured the right for the dismissed to eliminate or reduce the average monthly earnings during the search for a new position. How does it work in practice.

A dismissed person due to redundancy (liquidation) may not immediately find a suitable position, therefore he is entitled to financial support for the duration of the job search, but no more than two months from the date of dismissal.

The video below will tell you about the payment of benefits upon dismissal due to staff reduction:

If the employee did not find a job after a month, he brings a statement and a work book (copy) to the former employer as confirmation of the lack of work. These documents are enough to receive the second (he received the first on the day of dismissal) payment in the amount of the average monthly salary.

It is also paid after the second month after the dismissal, if the work is not found. If employment occurs before the end of the second or subsequent months after the dismissal, then the amount is adjusted in proportion to the days of unemployment of the paid month.

This is done on the basis of an application and a copy of the entry from the work book made by the new employer. It is not necessary to receive a payment immediately after the device to a new place. The right is reserved for the reduced one for a year.

If the employee did not find a job 3 months after the dismissal, he also provides a written application, a copy of the work book without a job record and a certificate with where the dismissed person should have registered as unemployed in the first 2 weeks after dismissal. If he did not do this, there will be no payment for the third month.

For workers in remote areas, the payment of benefits is provided for six months after dismissal, subject to timely registration at the labor exchange.

Benefit upon dismissal by agreement of the parties

The procedure for terminating an employment contract is regulated by Art. 78 of the Labor Code of the Russian Federation. She explains that such termination can be made at any time, if both parties do not object. They sign an agreement to terminate the contract, which is a legal confirmation of the legality of the employee's termination of employment.

At the same time, the employer must indicate which employee will receive payments and compensation upon dismissal by agreement of the parties (if receipt is prescribed in a local regulatory act), as well as the date they were received.

The Labor Code does not regulate this issue. Severance pay upon dismissal by agreement of the parties is accrued on a voluntary basis and depending on the capabilities of the employer. By agreement of the parties, a worker of any category may be dismissed, including pregnant women, persons with children, the disabled, etc.

To quit on this basis, it is enough to write a statement (with the employee's own hand) and draw up an agreement (Article 77 of the Labor Code of the Russian Federation). The calculation is made in the usual way.

Severance pay is legally allowed not to be paid. The employer has the right to make a payment on his own initiative, or refuse. There will be no penalties for non-payment.

Settlement must be paid on the day of dismissal. If the employer decided to provide financial support to the resigned and assigned a severance pay, the term for its payment is indicated in the text of the previously signed agreement.

Voluntary redundancy allowance

An employee may at any time refuse to fulfill an employment contract, that is, quit of his own free will (Article 80 of the Labor Code of the Russian Federation). By law, severance pay for dismissal of one's own free will is not required. The employee is entitled to only estimated payments accrued according to the general rule. This is a salary for the days worked before dismissal, vacation pay, sick leave allowance, if any.

Sick leave after retirement

An employee who has ceased work in the organization has the right to pay sick leave after dismissal. The legislator fixed: in case of disability within a period not later than 30 days from the date of dismissal, the employer pays a sick leave (FZ-No. 255).

All questions of interest can be asked in the comments to the article.