Severance pay upon dismissal: severance pay + 3 main reasons for leaving + 2 situations when severance pay not paid.

Dismissal, in itself, is not a very pleasant process. Severance pay at the final breakup helps to brighten it up a bit.

And yet, how to leave work, while profitably for yourself? What guarantees provided by the legislation should the worker pay special attention to? After all, how much severance pay can you expect when you leave?

What is severance pay?

Let's first understand what we are talking about.

severance pay- this is the amount of money that is due to the employee upon dismissal, and is paid on the day when the worker "says goodbye" to his favorite job.

According to labor legislation, for the dismissal of a person from his position, there must be certain reasons and the very procedure for this procedure must be followed. If you find yourself in the role of a dismissed person, then you need to pay attention that the amount of the allowance for different reasons for leaving the position will, accordingly, vary.

In this summary table, we list + the amounts of severance pay:

You can read more about the article of labor legislation that regulates the payment of severance pay from management in this situation at the link: Cons_doc_LAW_34683/868e999565203643c0080fb1f91
c40cc6c9df123

3 main reasons to fire a person and the amount of severance pay upon dismissal for each

Reason #1. Liquidation of the enterprise or reduction of employees.

The payment of financial assistance from the management in this situation is made according to paragraphs. 1-2 hours 1 tbsp. 81 TC: https://goo.gl/oJi1za

If liquidation in the company or staff reduction is brewing, then employees must be notified of future changes in advance - 2 months in advance. Moreover, only in the form of a written document.

You can see the warning form itself below:

When a person is fired from the workplace for this reason, he is entitled to the following:

The last point is especially interesting, so if you were fired for this or any other reason, you should not hesitate - register with the labor exchange faster. Then your employer will have to fork out more.

In addition to all this, there is another positive point: when calculating payments, all incentives are taken into account, as well as compensation for missed vacations.

See diagram for details:

Now let's talk about certain guarantees provided for by labor legislation. You should be aware that not everyone can be fired for the reasons indicated in this section.

It is impossible to reduce such employees:

Reason number 2. Refusal to transfer to another job required by the employee according to the medical document.

For the person who lost workplace, in this case it is made according to paragraph 8 of part 1 of Art. 77 TK ( www.consultant.ru/document/Cons_doc_LAW_34683/790f7da763bc677a4a37e1a58868ebe
831fe4c00).

If they want to fire you under this article, you need to know that the only legal basis in this case, it is a medical document that confirms the need to change jobs. You must be notified of the impending dismissal in writing.

In this case, you are entitled to severance pay. in the amount of a two-week average salary. In addition, do not forget to take with you the money for your never taken vacation + all your bonuses.

Walk away nicely with all your money. After all, you honestly earned them!

Reason number 3. Dismissal at will.

Let's say right away: if you decide to leave work at will, then no money will be paid to you.

However, we will analyze the scheme of how it happens correctly:

1. First of all, you need to notify your employer that you want to voluntarily leave your position.
2. If the boss really does not want to let go of his valuable employee, then you can mail by registered mail Submit your letter of resignation with notice.

   Then he will not be able to return it back, and you, accordingly, will have evidence of sending the application.

If two weeks have passed since your notice, then you are free to stop working. On the last working day, you are required to issue the entire amount for the actual hours worked + work book. You will not receive any compensation for dismissal, as we have already said.

What is an employee entitled to?
if he gets laid off?

The amount of severance pay upon dismissal.

Reasons for non-payment of severance pay to a laid-off employee

There are exceptions to the rule in this situation. In some cases former employee no severance pay is paid, and not only when the dismissal occurs of one's own free will.

You can see these points in more detail in the table below:

That is, as a conclusion, you can indicate the following main reasons for non-payment of severance pay upon dismissal:

1. The employee fundamentally “shirks” from work, while already having one disciplinary sanction behind his soul.
2. If the head of the organization "got excited" and made a decision that entailed losses for the organization.
3. If the worker only once, but "very well" violated his direct duties.

This may appear, for example, in:

In any case, know your rights, and even if you are asked to leave your workplace, remain calm and restraint, because you are a valuable employee who is entitled to severance pay upon dismissal.

Do not despair, because who knows, maybe you are worth better job earning more than before? BUT financial aid from the former boss will give you the time you need to look for a new place.

Alternatively, you can try yourself in a radically different field and open your own business.

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

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

Biweekly average earnings due

With medical opinion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Call for military service

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

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

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

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

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

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

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

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

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

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

The final settlement with the employee includes:

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

compensation for all unused holidays. In this case, the employee is entitled to full compensation (for 28 calendar days), if the duration of the employee’s working year at the time of his dismissal exceeded 5.5 months (clause 28 of the Rules on regular and additional holidays, approved by the resolution of the NCT of the USSR dated April 30, 30 No. 169);

severance pay in the amount of 42,583.27 rubles.

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

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

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

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

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

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

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

Average earnings

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

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

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

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

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

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

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

hold positions:

in the public service;

in local governments;

engage in certain professional or other activities.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Above average earnings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

salary for 11 working days worked in July;

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

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

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

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

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

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

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

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

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

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

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

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

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

Taxation issues

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

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

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

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

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

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

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

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

The fact that compensation payments related to the dismissal of employees, which include, among other things, severance pay and the amount of average monthly earnings paid in accordance with Article 178 of the Labor Code of the Russian Federation, are exempt from personal income tax on the basis of paragraph 3 of Article 217 of the Tax Code of the Russian Federation in a total amount that does not generally exceed three times the average monthly salary (six times the average monthly salary for employees laid off from organizations located in the regions of the Far North and equivalent areas), confirmed by the Ministry of Finance of Russia in letters dated February 12, 2016 No. 03- 04-06/7581, dated 02/12/16 No. 03-04-06/7535. Amounts exceeding three times the size (six times the size) of the average monthly earnings are subject to personal income tax in the prescribed manner.

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

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

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

Continuation of example 5

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

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

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

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

Therefore, the employee was paid:

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

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

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

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

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

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

End of Example 4

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

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

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

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

The leadership of the FSS of Russia in the explanations "On the taxation of insurance premiums certain types payments” (given in the annex to the letter of the FSS of Russia dated 14.04.15 No. 02-09-11 / 06-5250) clarified that all compensation payments related to the dismissal of employees (severance pay, compensation, average monthly earnings for the period of employment), regardless of the grounds on which the dismissal is made, accrued after January 1, 2015, are exempt from insurance premiums in an amount not exceeding a total of three times the average monthly salary or six times the average monthly salary for employees dismissed from organizations located in the Far North and areas equated to them (question 1).

End of Example 5

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Evgeny PETROV, tax consultant

In some cases, on the last day of work of a departing employee, he is paid not only salary, vacation compensation, etc., but also severance pay. The two most common grounds are the reduction or liquidation of the company. The amount of payment is determined depending on the average salary and category of employee in accordance with the Labor Code. The rules and examples for calculating benefits are described in detail in the article.

Expert opinion

Chadova Svetlana

Leading Human Resources Specialist, lawyer consultant on labor law, website expert

Labor legislation provides for quite a few cases when, upon dismissal, an employee is issued not only a salary calculation, unused vacations and other compensation, but also severance pay. The main 2 cases are dismissal and due to the termination of the company's activities (bankruptcy, reorganization, etc.). In such situations, allowance is due for a maximum of 2 months.

There are also a number of other reasons (conscription to the Armed Forces of the Russian Federation, refusal to transfer to another position on medical indicators etc.), when the employee is also guaranteed severance pay, but it is paid only for 14 days.

If an employee works in a company located in the Far North, he has the right to receive severance pay upon dismissal on the same grounds. However, the maximum payment period can be increased to 4-6 months, if, being officially unemployed (registered with the employment service), he still cannot find a job.

The same warranty applies to seasonal workers; they are also paid benefits for 2 weeks.

Another reason is the violation by companies of the rules for concluding an employment contract. In this case, the amount of severance pay is one monthly salary.

If the leader, his deputy or Chief Accountant, the amount of payment is 3-month earnings (or higher). The reason for dismissal in this case is the change of the owner of the company.

The same amount of payments is due to the manager who leaves work by decision of the owner of the company.

Thus, the employer pays both the allowance and the average monthly salary only on the basis of a reduction or liquidation. In other cases, the employee can only claim the benefit itself. For all other reasons, the allowance is not paid– dismissal at the personal request of an employee, in case of violation of discipline, as well as dismissal of a person who was hired on fixed-term contract(validity period is not more than 2 months).

Allowance and dismissal by agreement of the parties

At any time, the employee and the manager can come to an agreement according to which the employee is dismissed from a specific date.

Thanks to this, he can quickly start looking for a new job, and the company gets rid of an “undesirable” employee in the state. Often in such cases, the parties agree on compensation, i.e. compensation, which is the severance pay. Since the legislation does not oblige the appointment of a payment upon dismissal by agreement, the employee and management agree on this individually.

The document is drawn up in an arbitrary form, the main condition for its signing is the voluntary decision of each party. The agreement contains information about the parties (name of the company, full name of the director or other person acting on his behalf, full name and position of the employee), as well as:

• date of termination of the employment contract (this is the day of dismissal);
• the amount of the allowance, the procedure for its payment;
• assertion that the parties have no claims against each other;
• their signatures, decoding of signatures (surnames, initials);
• date, seal of the organization.

The payment of benefits can be initially provided for under an employment contract (individual or collective). This is an obligation of the company, which it assumes voluntarily. In this case, the procedure and amount of payments are determined directly by the text of the contract or additional agreements to it.

Severance pay for employees hired by IP

It is important to understand that from the point of view of legislation, employees who have labor relations with enterprises (legal entities) and employees working for individual entrepreneurs have different legal status. In general, they can count on the same labor guarantees, however, severance pay upon dismissal is not paid by the entrepreneur if:

• he liquidates his company (ceases activities as an individual entrepreneur);
• cuts staff.

The relevant explanations were given by the Supreme Court of the Russian Federation.

The logic of the court is based on the fact that the IP is individual who is also an employer. However, since his company is not registered as entity(for example, LLC), a number of provisions of the Labor Code are not applicable to it. Thus, severance pay from an individual entrepreneur can be received only in cases where this is directly provided for by the employment contract.

How the allowance is calculated: rules and practical examples

According to the above articles of the Labor Code, the amount of severance pay is determined by the average earnings received by the employee per month. The allowance can be 1-fold (for 1 month), 2-fold and less often larger.

* Also, benefits can be paid for 3 months, but only if the citizen is officially recognized as unemployed (registered with the employment service), but never received new job. In the case of workers from the Far North, this period can be extended to a maximum of 6 months.

Thus, to calculate the amount of payment, you need to perform 2 steps:

1. Determine your average monthly income.
2. Determine the category of employee in accordance with the Labor Code.

Earnings are determined for the last 12 months (or less time - according to the actual length of service of the employee in this company). it average value, the calculation of which takes into account:

• actual salary;
• bonuses and bonuses;
• allowances;
• other types of payments that are prescribed in the internal normative documents employer.

In general, the calculation formula looks like this.

An employee works for the company for 18 months and leaves due to redundancy. His salary consists of a salary of 30,000 r and a bonus. It was paid quarterly, averaging 5,000 rubles. Then it turns out that for the entire period 6 bonuses were earned (for 6 quarters) in the total amount of 30,000 rubles. The average salary is: (30,000 * 18 months + 30,000 r) / 18 months. = 31667 rubles. This is the amount of severance pay for 1 month.

The employee works in the company for 6 months and 10 days, leaves due to military conscription. His salary is fixed and amounts to 36,000 r, bonuses were not awarded. We determine the average daily earnings based on the fact that there are 21 working days in a month: 36000/21 \u003d 1714 rubles. The benefit must be paid within 14 days. Therefore, its size is 1714 * 14 = 23396 rubles.

Payment is made on the last day of work leaving employee, however, only the amount for 1 month in advance is immediately transferred (similar to an advance payment).

If an employee is not employed, he can receive benefits for 2 or even 3 months, however, the Labor Code does not describe in detail the accrual procedure. Therefore, it is advisable to independently contact the former employer, provide certificates from the employment center and demand new payment, and if the conditions are not met, go to court.

Video commentary

Payment after the reduction of the employee is carried out as follows: to all dismissed general rule salary is paid for the last month worked.

Upon dismissal, it is calculated as usual, including all allowances, coefficients, bonuses. Failure to accrue on one of the standard items is the basis for contacting the labor inspectorate;

• compensation for the remaining vacation days;
• as well as all debts on payments not challenged in court.

The “reduced employee” has the right to count on an additional payment from the employer - a severance pay in the amount of SFP, financial assistance until official employment.

The maximum period of such pay - 6 months - is provided for workers who worked in difficult conditions, for example, in the Far North. For all other payments after the reduction are carried out for 3 months.

Compensation for the first month

On the day of full settlement, the laid-off worker receives, among other things, severance pay for the first month of unemployment.

The allowance for the period of employment to reduce the staff is issued, as it were, in advance (forward), but with official employment within a month after the dismissal, they do not need to be returned.

This is an undeniable guarantee - compensation for the reduction and for the inconvenience caused by this fact.

The procedure for paying severance pay in case of reduction for the second month

The payment of a second benefit upon reduction is a very common occurrence. A laid-off employee who did not get a job 2 months after the dismissal has the right to receive more payments from the employer's funds for the second month if the staff is reduced in the amount of his SPM at this place. The Labor Code of the Russian Federation does not explain the procedure for paying benefits for the second month, therefore misunderstandings and disputes often arise. In particular, citizens are interested in the question of how to get money for the second month of reduction. Let's consider everything in order.

The redundancy allowance for the second month has a designated purpose - financial support unemployed person fired from the company. Accordingly, a person should have the right to receive severance pay for the second month in case of reduction and document it.

The simplest proof in this case will be an “empty” work book. Those. one in which, after leaving the company, there are no records of employment in another organization.

IMPORTANT! Sometimes an “empty” labor does not mean that a person does not have a job. There are frequent cases when another employer draws up a new book or does not keep personnel records; or, for example, has not yet managed to make an entry. The latter can also happen through the fault of an employee who got a job in a company and “played” the document.

The former employer cannot mobile check the employment of the laid-off employee, therefore, situations when a working person receives a second payment upon reduction are not uncommon. Responsibility for such deception for the dismissed is not provided.

Each expense transaction of the company must be justified.

For a tax audit, a copy of a work book is not an excuse for issuing large sums from the cash desk.

The redundancy payment for the second month is based on a written request from the former employee.

There is no unified form, so any option containing:

1. Details of the parties in the header in the format "to whom - from whom".
2. Request for payment of money.
3. State the reason for the payment.
4. Date, personal signature and full name of the recipient.

Director of OOO "Tort" I.I. Petrov

From the former baker Ivanov P.P., living ... (address), telephone,

I am dismissed from the company on 02/01/16. So far, I haven't found a job. I provide proof of employment. I ask you to pay me compensation in the amount of the average monthly salary for the period from 03/01/16 to 03/31/16, provided for in Art. 178 of the Labor Code of the Russian Federation.

Ivanov P.P., personal painting, date

The application is forwarded to the Human Resources Department. The direct decision on the issuance of money is made by a financially responsible person authorized in this company: director, chief accountant, head of the personnel department, etc.

A permissive visa of the format “issue, prepare an order” is placed on the application. But how is the severance pay paid for the reduction for the second month? The answer is simple enough. Cash issued by order of the employer, also drawn up in a free form. Funds are transferred by cash order or by payment order, if the transfer goes through a bank.

We hope that in this paragraph you have found the necessary information about when the severance pay is paid for the reduction of staff for the second month, and also to whom it is due.

Payment for the third month

Not everyone can extend the forced “vacation” for reduction and receive benefits from the employer for the third month.

Reasons for this:

• complicated procedure for confirming unemployment;
• the absence of a single legislative basis for payment, the solution is unique every time.

The payment for the third month with a reduction in staff differs from the second one mainly in that the decision to issue money to a person from the employer's funds is made in the employment authorities. Objective criteria remain in the background, because the SZN inspector independently assesses whether a person deserves an allowance or not.

To begin with, in order to simply qualify for such payments after the reduction of an employee, you must:

1. When leaving, be sure to pick up the work book from last entry“dismissed on the basis of clause 2, part 1, article 81 of the Labor Code of the Russian Federation”, copies of the notice and the reduction order certified by the employer.
2. Within 14 days from the date of dismissal, have time to register with the employment service by providing the above documents.
3. Do not miss NPP events and meetings, respond to all proposals, be able to justify your refusal of vacancies (if suitable ones are found).

By the way, registration with the employment authorities does not change anything when receiving payments for the second month. Refusal to provide the employer with a certificate of employment from the SZN will not be recognized as a basis for refusing to pay maintenance.

If a person has been registered in good faith for all three months, but he has not been found a job, then, by personal decision of the SZN, the shortened person is issued a certificate stating that he is still unemployed and has the right to receive the last third payment from the employer.

However, the timing of the payment of severance pay in case of reduction for the third month by the legislator is not specified.

The certificate is mandatory for execution, the employer is subject to administrative liability for evading payment of severance pay for the third month in case of reduction.

Who is entitled to severance pay?

Such allowance after the reduction is due:

REFERENCE: The Labor Code of the Russian Federation in Article 178 enshrines the right of the employer to establish increased amounts of payments in case of staff reduction. But not everyone can pay more. And not everyone wants: the increased amounts of compensation, unlike the usual ones, are not exempt from paying UST and personal income tax from them.

Payments in case of a break in the terms established by law are made as follows:

• in case of early reduction - the employee is paid additional compensation for the period from the date of dismissal to 2 months, put on notice;
• if a person got a job, then the payment for the second month after the reduction is calculated proportionally for the days of this month when he did not work. The basis for the calculation is the date of admission to another organization.

Calculation rules

As a rule, citizens are interested in the question of how to calculate severance pay for a reduction for the second month? The answer is quite simple: benefits and compensations are paid on the basis of the employee's WFP.

According to the Regulations on the peculiarities of the procedure for calculating SZP (Decree of the Government of the Russian Federation No. 922), the average value is calculated as follows:

• the full earnings of a person for 12 months are divided by the number of days actually worked for the same period - we get the average daily earnings;
• the average daily earnings are multiplied by the number of days in the month for which the payment is made.

When calculating the SZP, the following are not taken into account:

Periods during which the employee did not work with the preservation of earnings. For example, the time of maternity leave or sick leave; days of forced downtime due to the fault of the employer, etc.

Accordingly, payments for these periods are not included in full earnings.

Payments not related to wages: subsidies for travel, accommodation, mobile communications, etc.

Terms of payment of severance pay in case of reduction for the second month

Art. 178 of the Labor Code of the Russian Federation establishes the right of an employee to receive severance pay and maintenance before employment for 3 months.

You just need to officially not work and bring an application for payment.

Legislatively, the timing of the payment of benefits for the reduction for the second month and the third is not established and, accordingly, is unlimited.

Art. 386 of the Labor Code of the Russian Federation fixes the term for the protection of their rights by an employee through a commission on labor disputes, extended by good reasons.

Labor Code of the Russian Federation, Article 386. Term for applying to the commission on labor disputes

An employee may apply to a labor dispute committee within three months from the date on which he learned or should have known about the violation of his right.
In case of omission for valid reasons due date The Labor Disputes Commission may restore it and resolve the dispute on the merits.

The right to receive these compensations exists until its realization. Those. if an employee was laid off, and he did not work for two months, managed to register with the SZN and received a certificate from the inspector, then the employer owes him a triple SZP.

Regardless of further employment until the complete liquidation of the company, the employer is obliged to pay benefits. He can apply in a month, and in 5 years.

It is this period of payment of average earnings for the second month in case of reduction that is established by the current legislation.

The only restriction is that the application must be submitted to working time companies. If the payment will be made from the cash desk in cash, then you should apply on the days of payment of salaries.

We hope that in our article you have found the necessary information about when benefits are paid for the second month with a reduction, as well as for the third

The economic crisis in our country has led to high prices and staff cuts everywhere.

It is known that upon dismissal, employees are entitled to payments for the period of employment, but in certain cases, various compensations and benefits are also relied upon.

Upon termination labor contract due to the liquidation of the enterprise (), or the reduction in the staff of the company (Article 81, paragraph 2, part 1 of the Labor Code of the Russian Federation), the dismissed citizen is paid a reduction allowance in the amount of the average salary.

He also retains the average monthly salary for the time of employment, but from the moment of dismissal no more than two months (taking into account the reduction allowance).

In case of delay, the employee has the right to compensate:

• unpaid sick leave;
• moral injury;
• unused or unpaid vacation.

When an employee applies to the judicial authorities, he can receive interest for delayed wages and compensation for legal services.

What period is included in the calculation?

The amounts of the reduction allowance and average earnings during employment should be calculated in accordance with the provision of article 139 of the Labor Code of the Russian Federation.

To calculate compensation, you need to determine the start and end dates of the month for which benefits (average earnings) are paid, find the number of days (hours) of work payable for the specified month, calculate the average daily (hourly) wage, and then find the amount of benefits for reduction.

The calculation is made for a period equal to 12 months before the period for which the termination of the employment contract falls.

Payouts to consider

to payouts, eligible employees abbreviated include:

1. The severance pay, which is paid once at the time of dismissal, must be at the level of the average official salary. If the employment contract states that the reduction allowance must be paid in an increased amount, then the employer must make such a payment.
2. Social assistance based on the average salary, retained by the citizen for the period of searching for a new job.

Social assistance in some cases can be extended for another month, but such a decision is made by the employment authorities. A citizen must apply to the employment authorities within a two-week period, including both working days and days off, starting from the date following the date of dismissal.

The composition of payments includes the amounts of wages fixed by the second paragraph of the Regulations on the peculiarities of the procedure for calculating the average salary.

At the same time, when calculating the reduction allowance and the average earnings of the amount, compensation is not accepted.

They take into account those payments characteristic of wages (salary), and which are recognized as such by Article 129 of the Labor Code of the Russian Federation.

Salary includes payment for work, depending on the qualifications of the employee, the quality, complexity, quantity and conditions of work. It also includes compensatory and incentive payments (bonuses, additional payments and allowances and other incentives).

Compensations are cash payments established to reimburse employees for costs associated with the performance of labor or other duties determined by the Labor Code of the Russian Federation and other regulations ().

Thus, monetary compensation for vacation is attributed to compensation payments, and therefore it is not taken into account when calculating the average earnings. In addition, you need to know that compensation is accrued on the day the employee leaves, which means that it is not included in the payments taken into account for the calculation period.

You should pay attention to the next point.

According to the Labor Code of the Russian Federation, if an employee falls ill within thirty days from the date of dismissal for reduction, then he can apply to the former manager for an additional payment due to "temporary disability".

The employee must be notified of the reduction due to the closure of the enterprise two calendar months before the date of liquidation of the company. At the same time, the employee has the right to quit earlier, but financial assistance is not allowed, or wait for the liquidation of the enterprise and receive payment.

If the boss dismisses the employee before the liquidation of the company, then he is entitled to compensation in larger size(this also includes a one-time payment equal to the average salary for the period from the day of dismissal until the termination of the organization's activities).

The reduction payment and all compensation due to him are paid on the day the citizen is dismissed.

Taxation of severance pay

Employee redundancy payments are guaranteed payments (Article 178 of the Labor Code of the Russian Federation). Personal income tax is not paid from this payment (Article 217, Clause 3 of the Tax Code of the Russian Federation).

By tax accounting severance pay reduces the base (taxable) for corporate income tax as part of salary expenses (Article 255, clause 9 of the Tax Code of the Russian Federation). Also, these payments are not subject to insurance premiums.

In accounting, the reduction allowance is an expense for ordinary activities (PBU 10/99 p. 5). The reflection of the calculation of the reduction allowance to the employee is made by the following entry: D 20 (25, 23.26, 29, 44) K 70.

How is severance pay calculated when reducing

The reduction allowance is calculated according to the formula:

• Severance pay \u003d Number of working days (hours) in 1 month. after dismissal (from the day following the day of dismissal) × Average day. (hourly) earnings.

The allowance for reduction in the amount of average earnings per month is considered the minimum limit. If an employee has fully worked out the norm of time during the calculation period, then his average monthly earnings should not be less than 1 minimum wage. This minimum is set for wages. If the employee's working time is recorded by day, the average daily earnings are determined as follows:

• Average day earnings \u003d employee earnings for the days he worked in the calculation period: the number of days actually worked for the calculation period.

Benefit payment procedure

1. For the first month, the calculation is made together with the calculation upon dismissal.
2. For the second month, payment is possible only upon presentation of a work book proving that during this time the citizen has not found a new job for himself. An employed worker is paid only for the time when he did not have a job.
3. Payments for the third month are possible only if the citizen has not found a new job for himself, while he is registered with the CZN. Such payments are made only upon a certificate from the Employment Center. After three months, payments are made only if the citizen worked in the Far North. To receive the average earnings for 3 months of employment, you must present with work book and a copy of it a certificate from the employment service on registration as in need of employment and that the employee was not employed on a certain date.

Calculation example

The employee worked according to the schedule of a five-day work week.

The time worked in the calculation period accounts for 205 working days, and the amount of payments taken into account when calculating the average earnings for the calculation period amounted to 150,700 rubles.

Average earnings are calculated for the calculation period from 12/01/2009 to 11/30/2010 (unless in the collective agreement and (or) local regulations application of a different calculation period is not specified).