The purpose of paying severance pay is. Severance pay upon dismissal. What payments are due to an employee upon dismissal

Severance pay- This is the compensation that is given to employees upon dismissal.

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The procedure for calculating and providing payments is determined by the Labor Code. Termination compensation labor relations with the employer depends on many factors, including the reason for the layoff.

What does the law say?

The allowance is compensation for the very fact of leaving the company, therefore it is paid on the day of dismissal (article 84.1, article 140 of the Labor Code of the Russian Federation).

Payments are made on the basis of an order, which indicates the reasons for the reduction. A separate order for awarding compensation has not been issued.

The amount of the allowance is determined based on average monthly earnings.

Concept

Severance pay is a lump sum payment assigned to a dismissed citizen. The grounds for making payments are provided for by labor laws, internal regulations of the company, collective and labor agreements.

Severance pay on dismissal is not always provided, but only in certain cases.

Normative base

Labor legislation obliges employers to provide benefits if the contract is terminated on one of the following grounds:

Liquidation of company;
staff reduction;
conscription of a citizen for military service;
reinstatement by a court or labor inspectorate;
refusal to transfer to another locality;
refusal to transfer to another job for medical reasons;
recognition of an employee as unfit for work for health reasons (if there is a medical certificate);
giving up further work due to a change in working conditions;
reduction of the head through no fault of his, if the founders are responsible for the decision;
with the head and chief accountant due to the change of ownership;
violations committed by the employer, as a result of which it becomes impossible to move to another vacancy by a court decision, medical indicators, for persons who do not have the required education documents, citizens deprived of certain rights (expelled from Russian Federation dismissed from the civil service, etc.), incl. deprived of the right to carry out certain activities.

The dismissed citizen receives compensation in the amount of the average salary in the next two months.

If you register at an employment center, the payment terms will increase to three months.

The average monthly salary is due to employees dismissed due to violation of the rules for concluding an agreement.

The dismissed manager and chief accountant are entitled to compensation in the amount of three average salaries. In all other cases, the reduction is due to the amount corresponding to the two-week salary.

This also includes citizens employed in seasonal work.

What documents of the organization are fixed?

People often refer to all the money they receive upon dismissal as severance pay. The exciting situation of changing jobs is always fraught with a bunch of questions from dismissed workers. Therefore, in this article, I will answer in as much detail as possible an important question - what will the employee be paid upon dismissal? How payments are calculated, what is fraught with non-payment or delay for the employer in this case, and other related issues.

Severance pay upon dismissal is stipulated by article 178 Labor Code Russian Federation, which is called "Severance Payments" and refers to Chapter 27 "Guarantees and Compensations to Employees Related to Termination employment contract».

○ Severance pay upon dismissal.

Severance pay is a sum of money paid in a lump sum upon termination of employment for certain reasons.

If something unpleasant for employees occurs - the liquidation of the organization or a massive reduction in the number (staff) of employees, in this case, the employee must be paid severance pay equal to the average monthly earnings... In addition, he will retain his average monthly earnings for the period of employment, but no longer than two months from the date of dismissal (including severance pay).

EXAMPLE! If an employee of Vasilisa Wonderful wages on average 18,200 rubles per month, and an employee of Zmey Gorynych, 22,660 rubles, both will receive exactly these amounts as severance pay in case of redundancy.

However, if the enterprise or organization has a collective agreement stipulating that, when dismissing employees in the event of liquidation or reduction of staff, everyone is paid a severance pay of 30,000 rubles, then that amount will be paid to everyone.

IMPORTANT! V labor law along with the Labor Code, other acts act on an equal footing if they improve the position of the employee.

If the laid-off worker applied to the employment service body, but was not employed within two weeks (about which he was issued an appropriate decision of this body), then, having provided his work book and this decision at his old job, he can count on the average monthly earnings within the third month from the date of dismissal. But this case is exceptional.

Severance pay in the amount of two weeks average earnings paid upon termination of the employment contract in the following cases.

If the employee was issued a medical certificate that does not allow him to work on the conditions under which he was once hired for this job, while the employer offered a job in another position, and the employee refused (or the employer does not have a suitable vacancy). In this case, the employee is dismissed in accordance with paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation.
The situation may be worse - and for some serious health reasons, the medical and sanitary examination establishes a “non-working” disability group for the employee. It turns out that he is completely incapable of labor activity and must be dismissed immediately on the day the conclusion is issued due to circumstances beyond the control of the parties, paragraph 5 of the first part of Article 83 of the Labor Code of the Russian Federation.
The employee was called up for compulsory military service (in this case, the law equates the civilian alternative to this service).
EXAMPLE!If the employee Ivan Zhukov received a summons, and he honestly went to the army, and before that his average monthly salary was 22,500, then when calculating he will be paid a severance pay in the amount of 11,250. In addition, he will be paid worked wages and compensation for unused vacation... There will be something to walk off the wires!
The practice of labor relations is quite extensive, and our courts comply with procedural deadlines, and can make their final decision for a rather long time. Thus, a situation may arise that you are hired to replace the person who has filed a lawsuit against illegal dismissal and reinstatement at their former workplace in the same status.
And this citizen was restored by the court to his former workplace... Unfortunately for you, as for those working in this place today, the employer is forced to fire you (the basis is clause 2 of part one of article 83 of the Labor Code of the Russian Federation). The weak form of compensation for your suffering in this case is the payment of severance pay.
It may happen that the employer is forced to move to another area for a number of reasons. If the employee does not agree to be transferred to work in another locality together with the employer, refuses to move, then, in accordance with paragraph 9 of part one of Article 77 of the Labor Code of the Russian Federation, he leaves, and he is paid severance pay in the amount of two weeks' average earnings.

○ Payments upon termination of employment by agreement of the parties.

Payments upon termination of employment by agreement of the parties are not required by law. However, payments and severance pay may be agreed on the basis of an employment agreement or collective agreement, or the payment may be specified in the termination agreement itself.

EXAMPLE! Having written a letter of resignation by agreement of the parties from OOO Pole Miracles, Basilio's cat agreed (and this was entered into the agreement in writing) that his severance pay would be 5,000 rubles. This amount was added to his salary and compensation for unused vacation.

○ Deadlines for termination benefits.

The term for payment of severance pay upon dismissal is the last working day of the employee when he will be given:

Wages.
Compensation for unused vacation.
Severance pay, if it is stipulated by law or other act (collective agreement, employment contract, agreement of the parties).

IMPORTANT! Monetary amounts that must be paid to an employee who is dismissed in connection with the liquidation of an organization or in connection with a reduction in the number or staff, for the second and, in exceptional cases, for the third month of the employment period, are not considered severance pay! Accordingly, their payment terms are determined locally.

What is severance pay and who is it entitled to? The Labor Code establishes the cases of these mandatory payments to those employees with whom the employment contract is terminated or does not continue. It should be noted that not every employee who leaves is entitled to severance pay. You need to be careful about settlements with an 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 culpable 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 calculating payments upon dismissal.

What is severance pay and who is entitled to it

Severance pay is defined by labor law as compensation in the event of termination of an employment contract with an employee. At the same time, the main reason for such termination, as a rule, is the initiative of the employer, as well as the reasons for which none of the parties to the employment contract can be responsible. Wherein, important nuance is the reason for the termination of the employment contract. If this is a disciplinary offense of an employee, violation of labor discipline by him, committed theft, embezzlement or official forgery, then such a “specialist” is not paid severance pay in any case.

According to the law, on the day of dismissal of an employee from work, he should pay severance pay, and also carry out all mutual settlements with him. In addition to the severance pay, the employee must receive compensation for unused vacation, as well as a sum wages, for the time actually worked by him. The calculation of benefits is made on the basis of legislative acts, an employment contract, a collective agreement, as well as the very expression of the will of the employer.

Sometimes, the employer has the right to pay severance pay to an employee who does not owe them at all, or is required, 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 the amount exceeding the statutory minimum, the employer must pay tax deductions for the employee.

Amount of severance pay upon dismissal

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, about which a condition should be contained in the collective agreement at the enterprise.

So, severance pay the size of monthly salary, is provided for those employees who leave for the following reasons:

complete liquidation of the enterprise;
if an employee was laid off at the enterprise.

As you can see, both reasons are associated with the initiative of the employer, in accordance with Art. 81 TC. In addition to the fact that this amount of severance pay is paid to the employee on the day of dismissal, for another two months he continues to retain his monthly earnings at this enterprise... Unless, of course, until this moment he finds himself new job... Then you do not need to continue paying the allowance.

Severance pay on dismissal in the amount of an employee's two-week wages is provided for those employees who leave:

in connection with the refusal of the employee to transfer to another position at the same enterprise, due to health conditions;
if the employee, due to his health condition, cannot perform work in this position, and there is no other vacancy suitable for the employee at the enterprise;
for military conscription;
upon reinstatement of a previously unlawfully dismissed employee in this position;
if the employee refuses to transfer to another place (district, region, region) of work, if the employer changes the location;
with the complete loss of the employee's ability to work;
with a significant change in the terms of the employment contract, which the employee refuses to accept.

Other severance payments are also available for executive positions and chief accountants. So, if an 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 a manager. Compensations are not paid for the dismissal of a manager for wrongful acts prescribed by law.

Calculation of severance pay upon dismissal

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 of employees, which should be indicated in the employment contract, as well as in the collective one. It is important that the severance pay is calculated correctly when an employee is fired.

A special procedure for settlements is provided by law for the dismissal of civil servants. The severance pay for the dismissal of civil servants is calculated based on the monthly salary of such an employee, and should be an amount equal to three monthly salaries of a civil servant. This applies to dismissal due to layoffs, or in the liquidation of the body where the employee served. For judges and prosecutors, other amounts of severance pay are provided upon dismissal for various reasons.

When calculating the severance pay, you should pay attention that if its size does not exceed three average employee salaries, the severance pay is not taxable. It is necessary to carry out the calculation according to a certain formula: the size of the employee's average daily earnings 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's activities. Some employers go for tricks and fire an employee by agreement of the parties. All because dismissing an employee on their own, or by agreement between the employee and the enterprise, the severance pay does not need to be paid to him. Knowing this, many employees defend their rights for 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.

Severance pay and other payments upon dismissal

An employee has the right to quit on his own initiative. At the same time, he is legally guaranteed only payments for unused vacation and for actually worked time. For those employees who are dismissed from the enterprise on 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 when the employment contract is terminated with him at the initiative of the enterprise.

p> In all other cases, except for the severance pay, the employee has the right to receive his earnings for the hours actually worked. And also, receive compensation for all unused vacations at this enterprise.

When issuing an order for the dismissal of 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 optional. 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 manager has the right to severance pay upon dismissal, in connection with a change in the owner of the enterprise, or for other reasons that do not depend on him. Sometimes an agreement with a manager may contain provisions stating that when early termination contract initiated by the employee himself, he does not have the right to claim all types of compensation. And sometimes, he must also pay the company and 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, police, civil service, judges. There are specialized regulatory legal acts that provide not only the amount of severance pay, but also an increase or decrease in this amount, depending on the reason for the resignation of a civil servant.

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Keywords:

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Severance pay on dismissal is paid if an employee falls under a layoff or upon liquidation of the enterprise. Severance pay is the amount of compensation that is established by labor law or collective agreement. This benefit is paid on the last working day. Its size depends on the basis for the dismissal of the employee.

Upon dismissal of an employee under paragraph 1 of Art. 81 of the Labor Code of the Russian Federation (liquidation of an enterprise) or clause 2 of Art. 81 of the Labor Code of the Russian Federation (staff reduction), the employer is obliged to pay compensation to the employee for 2 consecutive months after dismissal. The amount of compensation is equal to the employee's average monthly earnings. If the employee registered at the Employment Center at the place of residence within two weeks after the dismissal, but could not find a job within two months after the dismissal, then the employer must pay him compensation for the 3rd month. However, for this former employee must present a work book, which will not contain a new record of employment.

In the first 2 months, the former employee is not obliged to find a job, but if he does this, the employer still pays him an allowance. Many employees start looking for work as soon as they receive notice from their employer that they are downsized or liquidated. This leads to an early dismissal of the employee. But since the notification is served 2 months before the expected date of dismissal, the employee has the right to work these 2 months and receive a salary for them. If he leaves, "not waiting" for the end of these two months, then the employer must pay him the time not worked at his enterprise. Few people know about this nuance!

If an employee leaves for other reasons, then the severance pay will be equal to the average earnings of such an employee for 2 weeks. To pay benefits in this amount, the employee must resign due to the fact that:

he does not correspond to the position held for health reasons - nn. "A" clause 3 of Art. 81 of the Labor Code of the Russian Federation;
he is called up for military service - clause 1 of Art. 83 of the Labor Code of the Russian Federation;
he refuses to move to a new place of residence to continue his labor activity in this company - paragraph 9 of Art. 81 of the Labor Code of the Russian Federation.

The severance pay is compensation to the employee for the fact that the employment contract is terminated through the fault of the employer. The amount of severance pay can also be established by a collective agreement. Also, this document may establish other grounds for its payment.

When is severance pay paid

In some cases, upon dismissal of employees, they are entitled to the payment of severance pay. Its size depends on the grounds for termination of the employment relationship. Severance pay in the amount of the average earnings of a particular employee for 2 weeks is paid if this employee leaves for the following reason:

inconsistency with the position he occupies. The reason for the discrepancy is his state of health. This fact must be confirmed by an appropriate medical document;
conscription for military service or alternative military service;
the employer moves to another locality and the employee refuses to move with him;
an employee who has challenged his dismissal in court and is now considered reinstated at the workplace returns to this workplace. This fact must be confirmed by an appropriate court decision;
changes in working conditions by the employer, which led to the refusal to work in such conditions of a particular employee;
complete loss of his working capacity by this employee due to illness, accident or other reason. This fact must also be confirmed by an appropriate medical report;
termination of an employment contract with an employee who was hired to perform seasonal work due to the liquidation of the employer or layoffs.

Severance pay in the amount of the average earnings of a particular employee for 2 months is paid in the following cases:

reduction of staff at the enterprise or the number of personnel;
complete liquidation of the employer, it does not matter whether he is an entrepreneur or legal entity;
termination of the employment contract with this employee due to the fact that the norms of the law were violated when it was drawn up and concluded. However, the payment will be made only if there are circumstances that prevent the employee from performing his direct labor duties, and the violations were not committed through his fault.

When downsizing, the employer must also pay:

additional severance pay in the amount of average monthly earnings for the second month after dismissal, if the employee has not found a job;
for the third month after the dismissal, if the employee still has not found a job. The payment will be made only if, 2 weeks after the dismissal, this employee is registered at the employment center;
benefit if the employee leaves before the expiration of the 2-month notice period. The amount of the benefit is calculated in proportion to the days remaining until the end of the term.

The employer has the right to independently determine the amount of severance pay and other cases of its payment to retiring employees. The law does not prohibit him from doing this.
In separate articles of the Labor Code of the Russian Federation, other categories of workers are given who are supposed to pay severance pay:

the head of the company, his deputy and Chief Accountant if their dismissal occurs due to a change in ownership of a legal entity. The amount of the allowance is regulated by Art. 181 of the Labor Code of the Russian Federation and cannot be lower than the average earnings of these workers for 3 months;
in st. 279 shows the same norms, but only regarding the head of a unitary enterprise;
if an employee worked in the Far North and leaves due to the liquidation of the employer or due to staff reduction, then severance pay should be paid to him in the amount of 3 months' earnings. If he gets registered at the employment center on time and cannot find a job, payments are made within six months;
in st. 307 states that if the employer is individual, and the employment contract with the employee is concluded in accordance with all the rules labor legislation, then the amount of severance pay must be spelled out in the contract.

If an employee is hired for a period of up to 2 months, then severance pay is not paid to him. At the same time, the law does not prohibit the employer from independently making the necessary payments.

Calculation of severance pay

Severance pay is calculated based on the average earnings of a particular employee. To do this, you need to know the total income of the employee for the last year, as well as the days that he actually worked during this period. If an employee leaves in March 2018, then the period from 03/01/2017 to 02/28/2018 must be taken as the accounting period. If he has not worked even for a year, then the actual time worked is taken for the calculation.

For the calculation, you need to take into account:

the salary of this employee;
various incentive and compensation payments.

Do not need to consider:

vacation pay;
sick leave payments;
compensation for unused vacation or other payments that have nothing to do with work.

It is also worth considering the number of days actually worked by this employee during the reporting year.

Registration and timing

The algorithm for issuing severance pay depends on the grounds for terminating the employment relationship.
But first of all, an order is issued to dismiss the employee. The order must indicate:

grounds for dismissal;
the date on which this employee leaves;
the amount of compensation payments.

The longest and most scrupulous registration procedure in case of staff reduction and enterprise liquidation. When dismissing on such grounds, it is necessary to observe all the nuances and draw up "every piece of paper."

Calculation examples

For clarity of calculating the severance pay, it is necessary to give an example.
For example, an accountant resigns with a salary of 32,500 rubles. Salaries have not changed over the past year. In June 2016, he received a bonus of 6,500 rubles, in September, he was ill for 12 days and received disability benefits in the amount of 8,250 rubles, and in December, he received vacation pay in the amount of 33,400 rubles for 28 calendar days vacation.

For the calculation, only the salary should be taken into account, therefore the annual earnings of the leaving accountant is 32,500 * 12 = 390,000 rubles.
Over the past year, there were 293 working days, of which the accountant was ill for 12 days and 20 working days was on vacation. These days must be excluded. Therefore, in fact, he worked 293 - 12 - 20 = 261 days in the last year.

So, the average income of a resigning accountant per day was:
390,000/261 = 1,494.25 rubles
The size of the severance pay is 1,494.25 * 22 = 32,873.6 rubles for 22 working days of the next month after the dismissal.

If you need to calculate the benefit for 2 weeks, then you need average earnings specific employee for 1 day (in this example this is 1 494, 25 rubles) multiplied by 10 working days (this is how many working days in 2 calendar weeks).
The size of the severance pay for 2 weeks is 1,494.25 * 10 = 14,942.5 rubles.

In this way, the benefit for the second month is also calculated, if the employee finds a job and has not “served at home” a full month. The severance pay will be proportional to the number of days until employment.

For example, an accountant who was laid off due to staff reductions was able to find a job in the second month after being laid off. This month he was out of work for 7 working days. Therefore, the employer must pay him compensation for these 7 days.
The amount of compensation will be equal to - 1,494.25 * 7 = 10,459.75 rubles.

Amount of payments

The amount of the benefit depends on the reason for the dismissal. It can be paid in the amount of:

earnings in 2 weeks;
earnings in 1 month;
earnings in 3 months;
at the discretion of the employer.

The largest allowance in the amount of earnings for 3 months is received by the heads of the enterprise and chief accountants, if their dismissal occurs on the basis of a change in the owner of the legal entity, and no culpable actions in their activities in their positions have been found. Then the new owner of the property will have to pay them an allowance in the amount of earnings for 3 months.

In addition, the law does not prohibit an employer from setting his own severance pay. It can be paid for various reasons, even if the employee leaves on his own initiative. But there is one limitation! The employer cannot establish in the collective or labor agreement the amount of severance pay less than that provided by law on this basis for dismissal.

For example, the law stipulates that an employer must pay his employee a severance pay in the amount of 2 weeks' wages, since the employee is dismissed due to his being drafted into the army. According to calculations, according to the law, the severance pay is 10,000 rubles. Therefore, the employer cannot prescribe in the collective or labor agreement the amount of severance pay for this employee less than 10,000 rubles.

The employer must clearly know how much of the benefit he must pay by law, and what he can set on his own. The amount of the allowance set by the employer must be spelled out in the collective agreement or in the employment contract with each individual employee. The employer can set its own severance pay for each category of employees. For example, for accountants, one amount, and for security guards, another. The law does not forbid! If the employer violates the algorithm for paying benefits or underestimates its amount, then he will be held liable, in accordance with Art. 5 . 27 of the Code of Administrative Offenses of the Russian Federation.

2016-10-23

Article 178 of the Labor Code of the Russian Federation establishes the rules for the payment of severance pay upon dismissal - who can receive them, to whom the benefit is not paid, in what amount it is paid.

Only those dismissed employees who meet the grounds specified in Article 178 of the Labor Code of the Russian Federation can count on severance pay. In other cases, not prescribed in the Labor Code of the Russian Federation, severance pay can be paid, provided that it is spelled out in the internal local acts of the organization, for example, in the Collective Agreement.

Moreover, the organization can independently not only establish the cases in which the employee is entitled to this payment, but they themselves can determine its size, with the exception of the cases specified in article 178 of the Labor Code of the Russian Federation.

The amount of severance pay upon dismissal may be:

average monthly earnings;
two-week average earnings.

Severance pay equal to the average monthly earnings

The average monthly salary is paid to an employee upon dismissal at the initiative of the employer in two cases:

Clause 1 of Article 81 of the Labor Code of the Russian Federation - liquidation of an organization (read about dismissal during liquidation);
Clause 2 of Article 81 of the Labor Code of the Russian Federation - reduction of the organization's staff (read about dismissal in case of redundancy).

If an employment contract with an employee is terminated on the above grounds, then upon dismissal, in addition to wages for hours worked and vacation compensation, he also receives severance pay in the amount of the average monthly earnings for 1 month.

If the employee does not get a new job within the next month, then he is paid another average monthly salary. If he does not get a job in the second month, then another average earnings are paid. In this case, the employee must be registered with the employment service (you need to get up there within the first two weeks from the date of dismissal).

In exceptional cases, it is allowed to pay severance pay for the third month, if the employee still does not get a job, while being registered with the employment service, but it is not possible to find a new job.

The severance pay for the following months is paid on the basis of the employee's application, as well as upon confirmation from the employment service.

If the employee leaves at the employee's own request, by agreement of the parties or at the end of the term of the employment contract, then the payment of severance pay is not provided. Also, severance pay is not paid in cases when an employee leaves at the initiative of the employer under clause 81 of the Labor Code of the Russian Federation, with the exception of the first and second.

Severance pay equal to two weeks average earnings

Article 178 of the Labor Code of the Russian Federation provides for cases when an employee, upon dismissal, is entitled to severance pay in the amount of average earnings for 2 weeks:

if the employee refuses to transfer to another job for medical reasons or the employer does not have another position for such an employee (clause 8, article 77 of the Labor Code of the Russian Federation);
conscription into the army or other substitute civil service(Clause 1, Article 83 of the Labor Code of the Russian Federation);
restoration of the employee at the previous place of work (clause 2, article 83 of the Labor Code of the Russian Federation);
refusal to transfer to another locality together with the employer (clause 9 of article 77 of the Labor Code of the Russian Federation);
if the employee is found to be incapable of performing labor duties for health reasons (clause 5 of article 83 of the Labor Code of the Russian Federation);
the employee's unwillingness to continue working when the terms of the employment contract change (clause 7 of article 77 of the Labor Code of the Russian Federation).

Dismissal on these grounds serves as a pretext for maintaining the average earnings of the employee for two weeks.

You do not need to withhold personal income tax from the paid severance pay and accrue from it insurance premiums to extrabudgetary funds - details.

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