Severance pay upon dismissal is supposed to be accrued and paid to employees in the event of termination of employment on certain grounds. The possible amount of the dismissal benefit can be taken into account when compiling employment contract.
Upon termination of an employment contract with employees, they are paid amounts consisting of the final calculation (salary), compensation for unused vacation, as well as other payments, which include severance pay upon dismissal. True, it is not necessary in all cases. So, it is not accrued if the termination of the employment relationship occurred at the initiative of the employee, as well as in the event that he committed actions that entailed disciplinary liability.
It is legislated that severance pay must be paid in the following cases:
The amount of the listed payments can be increased, however, this should be spelled out in local regulations. Reasons for payments can also be expanded due to internal politics organizations.
Calculation in case of liquidation of an organization or a downsizing procedure is carried out on the basis of determining the average earnings in accordance with Art. 139 of the Labor Code of the Russian Federation.
Average earnings is the ratio of the amount of wages actually accrued for the last 12 months to the number of days worked. The resulting value must be multiplied by the number of working days in the first month after the dismissal.
Order calculation middle earnings v others situations given v articles :
According to the norms of the Labor Code of the Russian Federation, the period for the employment of a laid-off employee is the number of calendar days equal to a month, starting from the day following the dismissal. Weekend and holidays are not taken into account. If the employee was dismissed on 07/08/2017, then the first month for possible employment lasts from 07/09/2017 to 08/08/2017, and the second - from 08/09/2017 to 09/08/2017. Severance pay is paid for all working days in these periods.
A. V. Petrov was fired due to staff reduction. The size of his average monthly earnings for the last 12 months is 36,513.95 rubles. In addition to wages and compensation payments, upon dismissal, he will be entitled to a severance pay in this amount, which can be doubled (or tripled) if A. V. Petrov cannot find a new job within 2 (or 3) months after dismissal.
All payments accrued and received by an individual upon dismissal are classified as income. From the accrued amounts (compensation for vacation, calculation for the worked period), it is necessary to withhold personal income tax. However, an exception is made for severance pay in this case. According to paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, such payments upon dismissal do not fall into the taxable personal income tax base, if they do not exceed the amount established by law. But for amounts accrued in excess of the established limit, the tax will have to be calculated.
Additional information on this issue can be obtained from the article.
The position of the judges - in the material .
In cases of dismissal by agreement of the parties, the tax is also withheld only in the amount of excess of the legally established limits of severance pay.
If a situation develops in an enterprise in which staff reductions cannot be avoided, laid-off employees can count on severance pay upon dismissal in the amount of the average monthly salary. In addition, they are entitled to a payment in the same amount for the duration of their employment.
More explore the question can v material « Compensation per dismissal on reduction states - 2017 ».
In exceptional cases, by decision of the employment center, the amount of average earnings can be paid for the 3rd month after the termination of the contract. But for this, the employee needs to register with the labor exchange no later than 2 weeks after dismissal.
In order for the employee to be able to quickly find a new place for himself, the employer is obliged to notify the employees and the employment center of the upcoming reduction at least 2 months before the dismissal.
Often, the parties concerned, the employee and the employer, manage to agree on the termination of the employment contract. Dismissal for this reason is possible at any time and is accompanied by the procedure for signing an agreement.
Terms of dismissal should be spelled out in the agreement. This includes determining the amounts of severance payments if the parties come to an agreement mutual agreement about it.
In this case, no statutory payments to the employee are provided. Payment severance pay upon dismissal is carried out only in cases where such conditions are prescribed in an agreement or contracts - labor and collective.
The dismissal of employees is accompanied by the payment of amounts prescribed by law. Their size depends on the grounds for dismissal and other circumstances established by internal documents in relation to the amount of severance payments.
Receiving payouts upon retirement own will- the right of any employee, and these include not only wages for the period worked, but also a number of other charges.
Knowing and being able to defend your rights are important skills that will allow you to receive from the employer the full amount of money that is required by law.
Upon dismissal of one's own free will, the process of termination of labor relations is initiated by the employee of the organization himself.
According to the labor legislation of Russia, after notifying the employer of the intention to quit, you need to work for another two weeks, during which he has the opportunity to select another person for the vacant position.
By mutual agreement parties to the employment contract, the period may be reduced. In any case, the first document for registration of dismissal is a written statement.
It is also important for the resigning employee to keep in mind that he can withdraw his application up to the expiration of the required two weeks of work. This possibility is provided for by law, so the employer does not have the right to refuse, even if he has already found a replacement employee (except when a new employee cannot be refused - for example, when transferring from another enterprise).
In order to avoid violating his rights, the employee must notify the refusal to dismiss also in the form of a written statement, which can later be used as evidence of a violation of his rights during the forced termination of the employment contract.
Upon termination of relations, a work book is filled out and returned to the employee along with other documents (for example, a diploma of higher education) stored in the organization.
A probationary period is a period during which the employer evaluates how a particular employee is suitable for the position, and the employee, in turn, evaluates whether his expectations about work responsibilities match reality.
The main feature of voluntary dismissal during probationary period– shortened period of consideration of the application. In particular, the employer must consider the application within three days, and has no right to delay this period.
The length of the probationary period is set in labor agreement or attachment to it. By general rule it cannot exceed three months. However, for leadership positions this period can be extended up to 6 months.
For fixed-term employment contracts up to 2 months, a trial period cannot be established in principle, and for contracts up to six months, the maximum trial period is two weeks. In any of the above cases, the employee is not required to report the reasons for his dismissal, and has the right to terminate the employment contract at any time.
Employees on probation have the same rights to redundancy payments as regular employees of the organization.
Consider what estimated payments upon dismissal of their own free will the employer must pay.
According to labor law, a resigning employee is entitled to two obligatory types payments:
Salary should include not only salary, but also all allowances, bonuses, etc. provided for by the contract or local regulations. With regard to vacation compensation (vacation pay), there are two options for the development of the situation: the employee either agrees to the payment, or takes vacation with subsequent dismissal. In the second case, the final settlement with the employee and the return of the work book must be made before he goes on vacation.
There are rare situations when an employee takes a sick leave during vacation - in such a situation he is entitled to temporary disability benefits, but the vacation period for sick days is not extended. The provisions of the collective agreement may provide for other types of payments due to resigning workers, but such contracts are not common.
Upon dismissal of one's own free will, severance pay is not allowed - labor legislation regulates its payment only in case of liquidation of the company or reduction of staff.
The salary paid upon dismissal depends on which payment system is adopted at the enterprise. Examples:
In practice, any other payment system can be used - piece-variable, piece-progressive, bonus, etc. However, the above forms are most common.
The calculation of compensation for unused vacation is a more time-consuming process - accountants most often use special software for this.
In a simplified form, it can be represented as the following sequence of actions:
For example, an employee was hired on 08/13/2015 and fired on 09/16/2016. He did not take holidays at his own expense, which means that the work experience was 13 months and 10 days. For compensation purposes, the period will be 13 months (rounded down).
According to the employment contract, the employee is entitled to 36 days of vacation, then the vacation due to him will be 36 / 12 * 13 = 39 days. In fact, he used 15 days in June 2016, then the number of unused is 39 - 15 = 24 days. salary for prior year amounted to 460,000 rubles, the period worked out completely (except for vacation time).
Then average earnings per day will be: 460000 / (29.3 * 11 + 29.3 / 30 * 15) \u003d 1365.19 rubles, where 29.3 is the average number of days in a month (according to the Labor Code of the Russian Federation), 30 is the number of days in June 2016, 15 - the number of days actually worked in June 2016. Thus, compensation for unused vacation will be: 1365.19 * 24 = 32764.56 rubles.
In life, there are situations when, due to unforeseen circumstances, you have to leave your permanent place of work. This does not always happen at the request of the employee: you have to quit at different reasons. According to the Russian labor code, an employee must receive monetary compensation when leaving the official place of employment. Severance pay upon dismissal is provided so that a citizen is not left without money to live on after losing his job. Let's take a look at what severance pay is, who it's for, and how to calculate severance pay.
Severance pay upon dismissal is a one-time compensation that is accrued to an employee upon leaving permanent place work. It is intended only for officially employed citizens (those who work on a work book). The payment of severance pay does not always occur: if the employee quit due to own initiative, payout is not charged.
The Labor Code of the Russian Federation provides for compensation in case of dismissal of an employee by mutual agreement of the employee and the employer. This is the most common early termination method. labor contract, since it does not bring large financial losses to the employer or employee. Consider what payments upon dismissal in this case a person can claim:
The number of salaries that is provided to an employee in the event of dismissal by agreement of both parties is negotiated individually with each candidate for a position before signing an employment contract. When terminating an employment contract, a person receives the salary that was originally agreed in the document.
Liquidation is the process during which an enterprise completely ceases to operate, pays off employees and closes. According to the legislation of the Russian Federation, dismissal during the liquidation of an organization is the reason for the payment of benefits, since leaving the place of work does not occur at the initiative of the employee. Let's look at what payments are due upon dismissal during the liquidation of the enterprise:
The calculation of severance pay upon dismissal is based on the amount that a citizen receives monthly. For each month during which a person is supposed to be looking for work, the employer must pay him a monthly average salary. Thus, the average citizen will receive 1 salary for the last month worked + three additional salaries.
A person can receive a salary for the last thirty calendar days that have been worked out on the day of dismissal. Further severance benefits are paid only in the following cases:
The terms for payment of benefits are one day from the date of submission of a document confirming registration in local authorities employment.
In details this topic discussed in our article.
Above, we examined what payments upon dismissal are due to Russian citizens in the three most common cases (reduction, dismissal by agreement of both parties and reorganization of the enterprise). But there are also cases in which a person leaves his place of work not on his own initiative, so the company must pay compensation to the leaving citizen. The following situations can be distinguished:
In the above situations, the termination of the employment contract occurs for reasons that are beyond the control of the employee, so the employer must pay compensation so that the person has something to live for while looking for a new job. In this case, the employee may qualify for the following severance pay:
As we can see, severance pay is paid to a citizen of the Russian Federation in all cases if the dismissal did not occur on his initiative or not under the article.
Depending on the grounds for dismissal and other nuances, the terms for paying compensation differ. As a rule, the enterprise must accrue compensation to the citizen's card within 30 days from the date of termination of the employment contract. According to, a citizen can apply to the judiciary, the prosecutor's office Russian Federation or labor inspection for non-payment of compensation upon dismissal.
Important! Before contacting the authorities, you should notify the employer that you intend to collect due payment v judicial order, as in the future, representatives of the organization may state that you did not apply for payment.
After a written notification of the former employer, you can apply with a work book or an employment contract:
The instance is obliged to consider the issue of the employee whose rights have been violated within a month.
Here are some common questions regarding the payment of severance pay.
Is personal income tax calculated from severance pay upon dismissal?
Citizens' income tax ( individuals) can be deducted from the severance pay if the dismissal occurred with the consent of the employee and the employer, and only if the amount of the salary is equal to or exceeds three salaries of the citizen.
Is it necessary to join the labor exchange after dismissal at the initiative of the employer?
Registration at the labor exchange is the main condition for receiving payments upon liquidation of the enterprise. In other cases, the procedure is not required.
Can an employee quit on their own initiative and receive compensation from the employer?
Compensation is paid only to those people who lost their jobs not of their own free will. It is assumed that if a citizen independently terminates the contract with the employer, he has money for later life, so benefits in this situation are not accrued.
If you have any questions about the topic of this article, be sure to write in the comments below.
What is severance pay and who is entitled to it? The Labor Code establishes the cases of these mandatory payments to those employees with whom the employment contract is terminated or not continued. It should be noted that not every employee who leaves is entitled to severance pay. You need to carefully consider the settlements with the employee who quits, because underpaying him is a violation of the law, and overpaying too. In addition, the amount of the payment depends on the reason for which the employee was dismissed, whether there are any guilty actions on the part of the employee upon dismissal. It is also important to take into account the position of the employee, since managers and civil servants have a special status when they receive payments upon dismissal.
Severance pay determined labor law, as compensation for termination of the employment contract with the employee. At the same time, the main reason for such termination, as a rule, is the initiative of the employer, as well as reasons for which none of the parties to the employment contract can be responsible. Wherein, important nuance is the reason for terminating the employment contract. If this is a disciplinary offense of an employee, a violation of labor discipline, a theft, embezzlement or official forgery, then such a “specialist” is not paid severance pay in any case.
According to the law, on the day the employee is dismissed from work, he should be paid severance pay, as well as carry out all mutual settlements with him. In addition to severance pay, the employee must receive compensation for unused vacation, as well as the amount of wages for the time he actually worked. Benefits are calculated on the basis of legislative acts, an employment contract, a collective labor agreement, as well as the will of the employer itself.
Sometimes, the employer has the right to pay severance pay to an employee to whom they are not due at all, or are due, but in a smaller amount. The legislator does not prohibit the employer from establishing other compensation payments upon dismissal, directly in the text of the employment contract with the employee. That is, the basis for the payment of benefits can be not only the law, but also the agreement of the parties. Just do not forget that from an amount exceeding the legal minimum, the employer must pay tax deductions for the employee.
The Labor Code establishes the amount of severance pay that is provided for in a specific situation related to the dismissal of an employee. This amount can be increased at the initiative of the employer, which should contain a condition in the collective labor agreement at the enterprise.
So, a severance pay in the amount of a monthly salary is provided for those employees who leave for the following reasons:
As you can see, both reasons are related to the initiative of the employer, in accordance with Art. 81 TK. In addition to the fact that this amount of severance pay is paid to the employee on the day of dismissal, he continues to keep monthly earnings at this enterprise for another two months. Unless, of course, he does not find himself until this moment new job. Then you don't have to continue paying.
Severance pay in the amount of two weeks of the employee's salary is provided for those employees who leave:
Other severance pay is also provided for senior positions and chief accountants. So, if the employment contract with the head of the enterprise was terminated at the initiative of the owner, he is paid financial compensation, which is three times the average wage of the head. Compensation is not paid upon dismissal of the head for guilty actions provided for by law.
As mentioned above, the Labor Code establishes the minimum severance pay that must be paid to an employee upon dismissal. However, the employer is not deprived of the right to increase this amount for certain categories employees, which should be indicated in the employment contract, as well as in the collective. It is important that severance pay is calculated correctly when an employee leaves.
A special settlement procedure is provided by law for the dismissal of civil servants. The severance pay upon dismissal of civil servants is calculated based on the monthly earnings of such an employee, and should be an amount equal to three monthly salaries of a civil servant. This applies to dismissal due to reduction, or in the event of liquidation of the body where the employee served. For judges and employees of the prosecutor's office, other amounts of severance pay are provided for dismissal for various reasons.
When calculating the severance pay, it should be noted that if its amount does not exceed three times the average salary of the employee, the severance pay is not subject to taxation. It is necessary to carry out the calculation according to a certain formula: the size of the average daily earnings of an employee should be multiplied by the number of days for which this severance pay is paid.
Based on this, it follows that the employer must pay the severance pay to the employee if he was reduced at the enterprise, as well as in the event of the termination of the company. Some employers go to tricks and fire an employee by agreement of the parties. This is because when dismissing an employee of his own free will, or by agreement between the employee and the enterprise, he does not need to pay severance pay. Knowing this, many employees defend their rights to an extra penny, and do not follow the lead of their employers. After all, they will not be entitled to compensation and protection from the state.
The employee has the right to quit on his own initiative. At the same time, he is guaranteed by law only payments for unused vacation and for the time actually worked. For those employees who are dismissed from the enterprise at the initiative of the employer, all the above payments are provided, including severance pay. Sometimes, by the terms of the employment contract, additional compensation payments may be assigned to the employee upon termination of the employment contract with him at the initiative of the enterprise.
In all other cases, except for severance pay, the employee has the right to receive his earnings for the time actually worked. And also, to receive compensation for all unused vacations at this enterprise.
When issuing an order to dismiss an employee, it should be indicated that he is entitled to severance pay in a certain amount. But this is an optional requirement, and is not mandatory. Indeed, even if the employer did not indicate the size of the severance pay in the order, he still must pay it to the employee.
The head has the right to severance pay upon dismissal, in connection with a change in the owner of the enterprise, or for other reasons that are beyond his control. Sometimes the contract with the manager may contain provisions stating that in case of early termination of the contract at the initiative of the employee himself, he does not have the right to claim all types of compensation. And sometimes, he must also pay the company a penalty if his actions affected the well-being of the company.
The situation is different with the dismissal of employees of the prosecutor's office, the police, the civil service, and judges. There are specialized legal acts that provide not only the amount of the severance pay, but also an increase or decrease in this amount, depending on the reason for the dismissal of a civil servant.
By terminating the employment contract with the employer, in some cases, the employee can count on receiving severance pay. This right is provided to him by Article 178 of the Labor Code of the Russian Federation.
In essence, severance pay is a monetary compensation paid to an employee in connection with dismissal for reasons beyond his control. Such a compensation payment guarantees financial support for the period of looking for a new job.
The legitimacy of the termination of labor relations is ensured by compliance with the Labor Code of the Russian Federation and the terms of the Labor Agreement. Simply put, there must be sufficient grounds for dismissing an employee. In 2018, each of them has its own procedure for dismissal.
The common point is the issuance of an order by the head indicating the reasons for dismissal and final payments. V work book a record of dismissal is made indicating the article of the basis for the Labor Code of the Russian Federation.
The deadline for the final settlement (including the payment of severance pay) is the last day of work. In some cases, the employee retains the average daily earnings for a period of up to 3 months (up to 6 months for the regions of the Far North and equivalent territories).
It should be noted that if the employer at the time of the conclusion of the employment contract did not demand from the applicant a document confirming the absence statutory restrictions on work, then, regardless of whether the employee knew about these restrictions or did not know, he is entitled to a severance pay in case of dismissal for such circumstances.
The size of the severance pay depends on two values: the average earnings of the employee and the period that the employer compensates.
1)The allowance in the form of a two-week average earnings is due:
2) The payment of one average monthly salary is guaranteed upon termination of an employment contract concluded in violation of the law.
3) Managers and chief accountants dismissed due to a change of owners or by decision of the founders can count on three average monthly earnings.
The largest compensation payments are provided by law in case of liquidation of enterprises. These also include cases of downsizing and downsizing. In addition to one average monthly salary, the employer is obliged to keep the average salary for the employee for two months. wages for the period of employment.
By decision of the employment center, this period may be extended by 1 month. For the regions of the Far North and territories equated to them, these terms increase up to 6 months. The Labor Code outlines the minimum limits for severance pay. The enterprise may have a collective agreement or other local acts guaranteeing increased amounts of benefits and compensations.
To calculate many types of payments, the value of average earnings is used, the procedure for calculating which is described in Article 139 of the Labor Code of the Russian Federation. The average daily earnings are determined by dividing the sum of all payments to the employee for the billing period by the number of actually worked days of this period. For these purposes, the law establishes a settlement period equal to 12 previous calendar months.
The amount of the benefit is calculated according to the formula: Benefit = SDZ * RDP
where, SDZ - average daily earnings;
RDP - working days of the period for which the benefit is paid.
Let's look at an example:
Courier Savkin V.A. retired due to conscription. November 6 is the last day of his work. Salary Savkin V.A. is 12,000 rubles per month. He has been working in the company since May 15 this year on a five-day working week. The entire period has been fully completed. On the day of dismissal, Savkin should be paid wages for November, compensation for unused vacation and a two-week severance pay. We will not consider the calculation of compensation in this example.
In November, 21 working days, Savkin V.A. did 5 of them. Calculate salary for November:
12000: 21 * 5 = 2858 rubles
To calculate severance pay, you need to calculate the average daily earnings.
Formula: SDZ \u003d ZP / OD
ZP - earnings for the billing period (5 months)
OD - the number of days worked
Billing period - 12 calendar months from the 1st to the 30th (31st) day. But in our case, the employee has only 5 of them (from June 1 to October 31), which corresponds to 109 working days according to the production calendar, which have been fully worked out. Let's take these 5 months into account.
Average daily earnings \u003d (12000 * 5 months) / 109 \u003d 550.46 rubles
Since severance pay is paid on working days and not calendar days, only 10 days are taken into account in the calculation of the two-week (14-day allowance) (excluding holidays). And if there are also holidays in the next two weeks after the day of dismissal, then they are also deducted.
Severance pay \u003d 550.46 * 10 \u003d 5504.60 rubles
Severance pay refers to the income of individuals that is not subject to taxation in accordance with Article 217 of the Tax Code of the Russian Federation. In terms of established Labor Code they are not subject to income tax.
Organizations are exempt from accruing insurance premiums on benefits paid. The exception is when, in accordance with local acts or at the initiative of the employer, the amount of benefits exceeds the legal norms. In this case, personal income tax insurance premiums charged on the amount exceeding the specified norms.
