Payments upon dismissal at one's own request. What benefits are due at the birth of a child?

Upon termination of the employment relationship, the organization or enterprise must calculate the salary upon dismissal with the employee. In connection with dismissal, employees are paid wages for days worked in the month of dismissal and compensation payments for unused vacation. Depending on the reasons for dismissal, the employee may also be given severance pay or compensation payments due to the termination of the working relationship, as well as retain the average monthly salary.

The basis for formalizing the dismissal of an employee, including the basis for calculating all payments that are due to him by law, is the Order to terminate the employment contract with the employee. This order is issued in a certain form of maintaining personnel documentation. It was approved by the State Statistics Committee (forms T-8, T-8a). As a general rule, upon dismissal, an employee is paid:

1. Salary for working days that were actually worked in the month of dismissal, for example, when an employee quits of his own free will.

2. Compensation payments for unused vacation.

3. Severance pay (in cases established by labor legislation).

– work book;

– upon written application of the employee, copies of documents related to work are issued: copies of orders for admission, dismissal, relocation; certificates of salary, accrued and actually paid insurance premiums, etc.

Example of salary calculation upon dismissal

Employee Sergey Nikolaevich Fedorov resigns on November 19, 2015 due to conscription for military service. Calculate final salary.

First, let’s calculate wages for less than a full month:

Based on the fact that the monthly salary is 25 thousand rubles. , That

Salary for November = monthly salary / number of working shifts x number of shifts worked

Salary for November = 25,000.00/20x13 = 16,250.00 rub.

At the time of dismissal from Fedorov S.N. two weeks of unused vacation, so he is entitled to compensation for unused vacation.

Vacation compensation (KO) = salary for 12 months/(12 *29.43)* number of vacation days

KO = 25000.00/29.43x14 = 11945.39 rubles.

Since Fedorov S.N. is drafted into the army, then according to the Labor Code of the Russian Federation he is entitled to two weeks of severance pay.

Severance pay (VP) = average daily earnings for the year x 10 work shifts
Average daily earnings: salary for the previous 12 months / 12 / 29.3
25000/29.3 = 853.24 rubles.

VP = 853.24 x 10 = 8532.40 rub.

This severance pay is not subject to personal income tax.

Final payment = ZP + KO + VP – (ZP + KO)x13%

On the day of dismissal Fedorov S.N. will receive a final settlement of RUB 35,448.85.

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You work for yourself, you work, and then suddenly - the boss announces a reduction in staff. Unfortunately, many have encountered this situation.

Many questions immediately arise that require clarification. For example, what payments should an employee receive if he is laid off? What is the legal way to fire an employee? Is it possible to lay off pensioners and pregnant women?

Your position is no longer needed

One of the first questions that arises when an employee is laid off is: “What payments am I entitled to?” A similar situation occurs in both large and small companies. By law, layoffs must be announced no less than two months in advance.

The employee must sign that he was notified on time. If an employee refuses to sign, a special act is drawn up. If this rule is not followed, the person may be reinstated in his position. Once signatures are received, the company is required to offer new vacancies that match the employee's specialty.

When the two-month period comes to an end, the employment contract is terminated and payments are made to the employee in case of staff reduction. He is given a benefit in the form of an average salary. It is retained for the duration of employment (but not more than two months).

Retrenchment of an employee. Payments. Labor Code

This topic is regulated by Article 178 of the Labor Code of the Russian Federation. What she's talking about:

1. An employee who is laid off is paid benefits. Its amount is equal to average monthly earnings.
2. On the day of dismissal, the company is obliged to pay the employee all outstanding wages. As well as compensation for unrealized vacation.
3. Within sixty days after the layoff, the person is paid an average monthly income.
4. If he contacted the employment service no later than two weeks from the date of dismissal, but did not find the required vacancy, then, by decision of this body, the payment of compensation in the event of a layoff is extended for another month.
5. The payment of money must be made on time, otherwise the dismissed person may challenge his rights in court.

More about amounts

So, what payments are accrued to an employee when staffing is reduced? Firstly, this is financing in the form of average monthly income. It is paid within a period of up to 60 days. Secondly, a benefit that is issued immediately at the time of dismissal.

Thirdly, the manager is obliged to compensate all arrears of wages, as well as unused vacation. Fourthly, in special cases, the employee may be accrued two weeks' average income. This applies to moments when he does not agree to transfer to another service in cases considered in the legislation. Also, payments to an employee upon layoff are made in connection with:

• with his conscription into the army;
• with the reinstatement of the person who previously held this position (returning from maternity leave or appealing through the court);
• with refusal to move to another area;
• with his recognition as incapable of work;
• with refusal to work due to changes in the terms of the contract.

Here you need to remember that personal income tax is not withheld from the obligatory amounts. The enterprise is obliged to pay monetary compensation both in the event of liquidation of the company and in case of violations in the drafting of the employment contract (if they were not caused by the fault of the employee).

Collective and individual agreements preserve payments when an employee is laid off. The timing of the issuance of all due money is limited to the last day on which the employee is still registered in the organization. If there is a delay in payments, then for each day they accrue interest of at least 1/300 of the refinancing rate of the Central Bank of the Russian Federation.

Law violation

The fact of illegal dismissal is often encountered in everyday life. The employer wants to save his money and can take advantage of ignorance of labor laws. Anyone who has been laid off, having collected evidence of a violation of his rights, can always file a claim in court. The filing deadline is thirty calendar days from the date of receipt of a copy of the dismissal order or issuance of the work book. Valid reasons for being late in filing a claim may increase the time it takes to accept a claim. Also, a reason for filing a lawsuit is the refusal to pay interest on overdue compensation due to the worker.

Conditions for the “correct” reduction

If the manager decides to reduce the number of employees, then a number of rules must be followed:

1. Real reduction of workers. The fact of dismissal is entered into the organization's staffing table. An order is also issued to approve the new schedule.
2. According to Article 179 of the Labor Code, it is necessary to provide in writing a number of other vacancies that correspond to the employee’s qualifications.
3. According to Article 180 of the Labor Code, the boss must notify the employee no later than two months before dismissal. The employee must sign that he was warned on time. The manager also approves the plan for communicating information about the reduction. In this case, a newspaper, notice board, or meeting can be used.
4. A selective trade union body must consider the issue of dismissal. It consists of a lawyer, a personnel director, and a representative of the trade union committee. An order is also issued regarding the creation of the commission.
5. According to Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004, the responsibility to confirm the legality of dismissal and compliance with its procedure lies with the head of the organization.

Who should not be fired

Based on Article 261 of the Labor Code, a pregnant woman cannot be laid off. If she works under a fixed-term contract, the company is obliged to renew the agreement after this period. The woman will only need a medical certificate confirming her situation.

But it can be reduced in the case when it was registered with the organization during the absence of the previous employee, and there is no possibility of transfer to another vacancy. Also not subject to dismissal are women who have children under three years of age, and single mothers with a child under 14 years of age or a disabled child under 18.

There is one nuance in the field of education. As for the reduction of teaching staff in educational institutions, this action is possible only after the end of the school year.

Useful subtleties

1. Calculation of payments when laying off an employee who is a part-time employee is not made. The reason for this is the presence of a principal place of business.
2. A worker who has been laid off has the right to receive an early pension. At the same time, he needs to issue it no earlier than two years before the legal date.
3. If an employee has worked in an organization for less than six months, then compensation payments for unused vacation when the employee is laid off are still made.
4. Severance pay is not subject to the unified social tax, pension contributions, or personal income tax. As well as insurance contributions to the Social Insurance Fund. Compensation for unrealized vacation days is subject to personal income tax, but not unified social tax.
5. If payments to an employee upon layoff are not made from budgetary funds, then they are taken into account as part of the expenses going towards wages. Thus, the income tax is reduced (clause 9, article 255 of the Tax Code of the Russian Federation).
6. An employer can fire an employee without warning, but all payments must be retained. An agreement of this kind, however, like all others, must be drawn up in writing. If the worker and the head of the organization do not come to an agreement, then the reduction should occur on a general basis.

Retrenchment of an employee. What payments are accrued? Calculation example

Let's take the following example. The employee began his career on 09/01/07 and was laid off on 04/23/09 (received a notice from his superiors). He resigned on 6/24/09. For 12 months, the salary amounted to 126 thousand rubles. Start of work in the new organization - 09/05/09. We will calculate the average earnings, the amount of benefits and compensation for unrealized vacation.

So, what is the procedure for payments when an employee is laid off?

First, we will calculate the benefits due. To do this, divide the entire salary amount by 12 months and by the number of working days. We get average earnings per day - 357.14 rubles. We multiply this figure by thirty calendar days and get 10,714.2 rubles.

Secondly, we will calculate the amount that will be paid over several months. Since the employee did not get a new job in the first of them, the amount of severance pay goes towards the retained average income. In this case, the mandatory payment of average earnings during the second month is carried out. The benefit amount will be 11,071.34 rubles (average daily earnings multiplied by 31 calendar days). There will be no payments for the third month, as the employee has joined a new organization.

Thirdly, we will calculate benefits for unused vacation. Based on the fact that the employee worked for ten months, compensation will be paid in 23.33 days. We multiply 28 vacation days by the number of months worked (10) and divide by their number in a year (12). Multiplying the resulting figure by the average daily earnings, we get the entire amount of payments - 8,332.08 rubles.

Early dismissal of an employee

Article 180 of the Labor Code states that employees of organizations are notified of layoffs two months in advance. The same article contains a clause that states that a boss, by agreement with a subordinate, can terminate an employment contract without waiting for the stated date. All payments in case of early dismissal of an employee are preserved. But he will lose compensation if the basis for termination of the contract is a notice of voluntary dismissal. Thus, in order for early layoffs to occur with all legal payments, the following must be done:

1. The manager issues a proposal to the employee to cancel the employment contract before the official dismissal date.
2. The employee writes written consent to this proposal.

Compensation payments when an employee is laid off are not made if the application states “I ask you to dismiss me of my own free will.” Or there is a letter from the new manager requesting a transfer to another organization. If the application states “I request to be dismissed due to the reduction of my position before the expiration of the term,” then the mandatory consent of the employer will be required.

Going to court

Since it is beneficial for the employer to dismiss an employee at his own request, psychological pressure may be exerted on the latter. And this is a reason to go to court. Coercion to write a statement will need to be proven. When considering a labor dispute, the court pays attention to the following points:

1. What are the reasons for writing a statement - the employee’s own desire or coercion.
2. What are the circumstances of its registration?
3. How clearly the appeal is written and whether it contains the necessary details.
4. What are the worker's intentions?
5. What is the dismissal procedure?

If the court finds the termination of the employment relationship illegal, then the manager is obliged to reformulate the grounds for dismissal, as well as make all payments to the employee upon layoff. The option of reinstatement to the previous position with monetary compensation for forced absence is also possible.

Dismissal of a retired employee

When laying off a retired employee, the following payments must be made:

1. Compensation for unused vacations.
2. Benefit.
3. Maintaining average earnings for the duration of employment for no more than two months. If the organization is located in the Far North region, then up to three.

If an employee gets sick while looking for a new job

An employee has the right to submit sick leave to the manager or to the territorial body of the Social Insurance Fund within thirty days from the date of termination of the employment relationship. Sick leave is paid in the amount of 60% of the employee’s average income.

Reduction under a fixed-term contract

According to Article 79 of the Labor Code, this type of contract is liquidated upon expiration of its validity period. The boss must inform the employee within three days and always in writing. Seasonal workers must be given seven days' notice. They are also entitled to benefits in the amount of two weeks' average wage. If, after the expiration date, the contract was reissued as indefinite, then the employee is subject to dismissal on a general basis.

During pregnancy and the first time after childbirth, the state continues to provide financial support to mothers in the form of maternity benefits. This type of social guarantee is provided to working (employed) women for a period of time (maternity leave established by the Labor Code of the Russian Federation) in a guaranteed minimum amount, a multiple of the minimum wage (minimum wage, until July 1, 2017 is 7500 rub.). This benefit is paid in fixed amounts. At the same time, the general rules for calculating and calculating payments are regulated by the provisions of Federal laws:

• dated May 19, 1995 No. 81-FZ “On state benefits for citizens with children”;
• dated December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”.

Maternity benefits are paid depending on the social status of the recipient from the Social Insurance Fund (SIF) by enterprises or from the federal budget by educational organizations or the Department of Social Protection of the Population (USZN).

Maternity payments are provided at a time:

If a woman worked at several enterprises at the same time, then the accrued salaries for two years are summed up. If she continues to combine work in several organizations, then maternity benefits are paid at one enterprise of her choice.

If the average woman's earnings less than the current minimum wage at the time of going on maternity leave or the total insurance period is less than six months, then to calculate the benefit the minimum wage value is taken (until June 30, 2017 it is 7500 rub.).

In addition, the maximum amount of payments has been established. It should not exceed the size maximum contribution base compulsory social insurance in case of temporary disability and in connection with maternity, which are:

• in 2009 and 2010 - 415,000 rubles;
• in 2011 - 463,000 rubles;
• in 2012 - 512,000 rubles;
• in 2013 - 568,000 rubles;
• in 2014 - 624,000 rubles;
• in 2015 - 670,000 rubles;
• in 2016 - 718,000 rubles;
• in 2017 - 755,000 rubles.

Therefore, in 2017, maternity benefits were accrued and paid in amounts not exceeding the following values:

How are maternity benefits calculated?

To receive maternity benefits, a pregnant woman must meet following conditions:

• be officially employed;
• be registered for pregnancy at a antenatal clinic or other medical institution;
• in accordance with the certificate of incapacity for work, be on.

The exceptions are the following categories of unemployed:

• were laid off during the year due to reduction within no more than 12 previous months and were duly registered with the Employment Center;
• study in an educational organization on a full-time basis.

If you belong to the category of citizens who are entitled to maternity benefits, then to receive it you must:

1. Obtain from a antenatal clinic or other medical institution a certificate of registration for pregnancy, indicating the date of registration.
2. Get it from your doctor.
3. If you work, or have worked at several enterprises over the last two years, you need to obtain certificates from these organizations on the calculation of average earnings, for subsequent submission to the employer’s department, which will make the payment.
4. Write an application addressed to the director of the enterprise - employer about leaving and receiving maternity benefits.
5. All prepared documents must be submitted to the organization’s human resources department.

If during this period the management of the enterprise does not make any decision and does not make payments, then the woman has the right to apply for benefits to the local branch of the Social Insurance Fund (FSS).

Maternity payments for a non-working mother

Receive maternity benefits in the amount RUB 613.14 per month, if they:

• are registered with the Employment Service (ESS) as persons who have lost their jobs due to layoffs from an enterprise during its liquidation (or termination of activities in the form of individual entrepreneurs or self-employed people);
• in educational organizations at various levels - paid in the form of a scholarship.

To apply for benefits, in the first case, a woman must contact the territorial Department of the Social Protection Service, and in the second case, she must contact the educational institution where she is receiving her education.

To receive payment unemployed woman must provide:

• statement;
• sick leave from a medical institution;
• work book or extract with marks from the last place of work;
• a certificate from the Employment Service confirming registration as unemployed.

The decision to receive benefits is made within 10 days from the date of submission of the application. You can apply for maternity benefits any day after receipt, but no later than 6 months after its completion.

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

Grounds

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

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

Types of payments

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

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

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

Procedure for issuance and retention

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

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

Vacation pay calculation

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

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

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

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

Rules for calculation upon termination of an employment contract

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

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

Care on your own initiative

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

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

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

When it is impossible to make deductions for unworked vacation

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

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

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

its calculation and size

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

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

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

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

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

Example of final calculation

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

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

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

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

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

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

Arbitrage practice

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

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

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