Sometimes, when dismissing an employee, the company is obliged to pay him not only money for the period worked and unused vacation, but also additional funds. They are called severance pay and are provided to the dismissed specialist on the last day of work.
This kind of financial assistance is fixed by the Labor Code and law enforcement practice. Not all employees can count on a sum of money. Payment is only possible for certain reasons termination of employment relations.
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Basic provisions
Maximum amounts are specified in employment agreements, while the legal norm determines the minimum threshold. The legislation also prescribes the procedure for personnel who held leadership positions before dismissal. Such persons have right to special benefits.
In case of calculated violations and the amount received does not comply with the parameters of Labor legislation, the dismissed specialist may exercise the right to appeal to the labor safety inspectorate or the courts. 
The parameters of severance pay, the period for receiving it and other nuances are regulated by several articles of the Labor Code of the Russian Federation. First of all, this Article 178, where the grounds are stated to receive amounts of money, their size, as well as the procedure and timing of payment.
The reasons for termination of employment relations, which presuppose the right of the dismissed person to receive compensation for the period of job search, are stated in Article 81 of the Labor Code, where they include:
- companies.
- Staff reduction.
Article 318 TC determines the amount of funds received by specialists of liquidated companies operating in the Northern regions.
Article 84 of the Labor Code of the Russian Federation regulates monetary relations in situations where the employment contract was concluded with obvious violations, but the employee was not to blame for them.
Article 180 TC establishes the possibility of terminating the employment relationship without prior notice to the employee, indicating the means available to him in this situation.
Article 296 of the Labor Code of the Russian Federation, prescribes the rights of personnel recruited for season 1.
Article 181 of the Labor Code of the Russian Federation, prescribes the rights and amounts of money due to the management personnel of companies.
Article 83 of the Labor Code of the Russian Federation indicates how much an employee drafted into the army can expect.
The payment procedure is indicated in Article 77 of the Labor Code of the Russian Federation. It also prescribes the amount of payment to a specialist who refuses to move with the company.
Reasons for paying severance pay
In fact, the benefit represents compensation for the dismissal itself, the order of which is the reason for the corresponding payments.
You can familiarize yourself with a sample order for the payment of severance pay.
No other documents are required. The required amounts are issued depending on what grounds led to the dismissal specialist These include:
They mean the following:
- An employment contract with persons deprived of the right to hold a certain position by a court verdict;
- medical contraindications for specific work;
- the hired employees lack the necessary experience and competence, confirmed by diplomas and certificates;
- enrollment of disqualified persons deprived of the right to occupy a specific position or expelled outside Russia;
- enrollment of persons previously dismissed from state or municipal service, with a ban on performing such functions in the future;
- enrollment of workers who are prohibited from performing certain functions. For example, minor employees are not allowed to perform hazardous work.
If the employer is not an organization, but an entrepreneur, the conditions for compensation upon termination of activity and reduction of personnel are prescribed in the employment agreement. If it does not indicate payment for such reasons, the dismissed specialist receives nothing.
When going to court, he also cannot count on favorable consideration. The definitions of the Kirov, Moscow regional courts and the Khabarovsk regional court stand out as precedents.
In other situations, the reasons for compensation for dismissed personnel do not depend on the type of employer, be it an organization or a private entrepreneur.
Reimbursement amounts in cases not provided for by law, but established by internal regulations, are made at the expense of the organization’s income, with the condition that this does not entail an increase in the cost of manufactured goods.
At the same time, the legislation clearly indicates that a collective agreement can only improve employee rights regarding the provisions prescribed in the Labor Code and other regulations.
Because of this, most collective agreements determine the amount of compensation payments. If such conditions are not specified, dismissed persons can rely on legal compensation.
Certain categories of specialists have the right to count to a separate mechanism and other amounts of compensation settlements. Such persons include civil servants dismissed as part of departmental reductions or the dissolution of a certain body.
They are entitled to a payment in the amount of the average salary, which is made during 3 month period from the date of dismissal. In addition, individuals can also count on severance pay in the amount determined by the terms of the employment agreement.
You might be interested to know how unemployment is calculated.
In the absence of suitable offers for employment in a new position, a civil servant retains continuous service for a period of 1 year.
The director, deputy director and chief accountant have the right to expect compensation in the amount of the average salary for 3 months. It is made in situations where property is transferred to another owner, obliging the new owner to make payments.
A manager dismissed without reason and in the absence of his direct fault also has the right to compensation in the amount of wages in 3 months.
Order and size
In any case (provided by law) the employee can count on for the amount of actual average monthly earnings. Reimbursement during the period of employment is calculated for a 5 or 6-day working week, based on the regulations of the previous organization.
When calculating the average monthly benefit, earnings in the year preceding dismissal are taken into account, and the process itself is carried out according to the formula:
SDZ (average daily wage) + RD (number of working days) = Benefit.
The payment mechanism accepted by the company, be it salary, piecework, bonus amounts, as well as tariffs in the form of hourly, daily or monthly rates is not taken into account.
The procedure for compensation calculations and their amounts depend on the nature of termination of the employment agreement and its reasons:
If the employment agreement was concluded with violations that make it impossible for the person to continue working or transfer to another place within the company, he, in the absence of guilt in violations, receives compensation in the amount of monthly earnings.
2 week earnings is due to employees who were previously dismissed on illegal grounds and reinstated following a court verdict or appeal from the labor inspectorate. In this situation, it is controlled by the court.
Compensation upon dismissal by agreement of the parties
Sometimes employers and employees resort to parties in which 
All financial issues are regulated. There are no restrictions in this case, both parties independently discussing the amount of compensation.
However, subsequently challenging the compensation is quite problematic and a signature on the document automatically deprives the employee of the right to any additional payments.
Find out the procedure for dismissal by agreement of the parties with payment of compensation in our article.
On the day of dismissal, by agreement of the parties, the company must pay the employee all the money due to him in the form of wages, compensation for vacation and severance payments, if they are provided for in the agreement.
In practice, a person is offered compensation in the form of a fixed amount or compensation calculated on a general basis, but issued within the framework. The calculation is carried out on the last day of work and subsequently the employee cannot count on other payments, including compensation for the period of searching for a new job.
Find out about payments in case of dismissal by agreement of the parties from the video:
Compensation payments for staff reductions
Staff reduction is one of the 2 reasons for paying compensation during the period of employment. The second basis for payment is the liquidation of the organization.
It is important to remember that legislative norms do not apply to individual entrepreneurs. If the company is registered as an individual entrepreneur and the employment agreement does not provide for compensation upon dismissal, the employee will receive nothing.
In other cases, a specialist has the right to a benefit in the amount of average monthly earnings. The law assumes that the amount will provide him with the necessary financial support while looking for a new job.
The first payment is made on the day of dismissal, and all subsequent payments require the provision of documents confirming the absence of a new job for an employee dismissed due to staff reduction.
An indispensable condition for subsequent payments is registration with the employment center in the first 2 weeks from the end of work. The legislation also allows for later contact with the employment service, in which the dismissed employee can also count on an extension of payments.
To do this, he must have valid reasons, which include illness, performance of public or government assignments. Receipt of compensation in the first 2 months does not depend on the applicant’s consent to the job offered at the Employment Center. However, having refused twice, he can no longer count on benefits for the 3rd month.
The proposed work should correspond to the employee’s qualification level, conditions of the last job, medical indicators and earnings. If his level exceeded the subsistence level, the employment agency cannot offer a position with lower pay.
If at the previous place of work, the salary did not correspond to the subsistence level, the employment center cannot offer a job with less earnings.
Some organizations provide a one-time payment covering the entire potential period of employment (no more than 3 months). However, such generosity is quite rare.
In practice, in order to receive compensation for the second month of employment, a specialist must present a work record book with no record of new employment and write a statement. To avoid misunderstandings, you must make a certified copy of the book.
Compensation to an employee for the 3rd month of job search is made subject to the provision of a written application, a work record book (a copy must also be made and certified) and a decision of the employment center to maintain the employee’s salary.
When staff reductions occur in companies operating in the regions of the Far North, the right to receive employment benefits remains with the dismissed employee within 6 months. Every month he must bring a work book, an order from the Employment Center and write a corresponding statement.
Seasonal workers and employees hired by the organization for a period of less than 2 months, in case of staff reduction, are entitled to a benefit in the amount of 2 weeks earnings.
How benefits are calculated upon dismissal due to staff reduction, see the video:
If for some reason an employee moves to another job, then he has the right to count on some monetary payments. Severance pay upon dismissal of an employee is provided in individual cases or reflected in the employment contract. The Labor Code does not define the exact procedure for making payments, so this issue often causes difficulties. So that the employer and employee can avoid misunderstandings, it is worth studying in detail the rules for processing payments in different circumstances.
What is severance pay
On the day of dismissal, the employer fully pays the employee. A salary is issued for all time worked, compensation for unused vacation days and a one-time severance pay in the amount of 2 weeks’ wages or more - depending on the situation. The grounds are contained in the relevant article of labor legislation or provided for by the company's regulations, collective/employment agreement. The right to payment and its amount are determined taking into account the situation. To issue funds, an order with a fixed basis is required.
In what cases is severance pay paid?
Average monthly earnings for the period of employment must remain for two months after the employee’s dismissal. Sometimes the period is extended to 90 days by decision of the employment service. You can receive payment upon dismissal in the following cases:
- The employee refused to move to another job due to the lack of a suitable position with the employer or for medical reasons.
- The employee refused to move with the employer to another area.
- The employee has received a disability and is therefore unable to perform his or her duties.
- The employee refused to work at the company due to changes in the employment agreement.
- Calling a worker into the ranks of the Russian army.
- Another permanent employee returned to work (for example, from maternity leave), and a temporary employee was hired as a replacement and is subject to dismissal.
- Severance pay upon dismissal is provided for in the employment contract.
- The company is undergoing a reorganization, so the number of staff is being reduced.
- The employer's company is subject to liquidation.
Payments upon dismissal by agreement of the parties
If termination of cooperation occurs by mutual consent, the employee receives payment. By agreement of the parties, severance pay may include compensation for unused vacation days, wages for time worked, bonuses, etc. Other payments not reflected in regulations or in the employment agreement are also allowed, at the discretion of the employer.
As a rule, in this case, upon dismissal, the employee should be entitled to compensation, since the initiator of the dismissal, by agreement of the parties, is the employer. However, employees should be careful about such offers. Often, dismissal begins in connection with the imminent liquidation of the enterprise, and employers, by offering an agreement, try to save on payments.
Upon dismissal due to disability
If an employee is recognized as disabled by a medical commission, he must provide the employer’s accountant with a corresponding certificate. After this, the company can offer him another, corresponding position. If an employee refuses, the employment relationship is terminated at his own request, so the company does not pay him severance pay upon dismissal. Another option is that the employer does not have a suitable vacancy or the disability does not provide for the person’s legal capacity. In this case, compensation is paid in the amount of two weeks' salary.
Upon resignation of one's own free will
Every Russian has the right to terminate an employment contract at any time by notifying the employer at least 2 weeks in advance. If the change of place of work is the initiative of the dismissed person, then no additional payments are due to him by law, except for compensation for unused vacation and salary. The exception is when the employment contract provides for benefits.
Upon liquidation of an enterprise
If the employer breaks off relations with the company’s personnel due to the liquidation of the enterprise, then he is obliged to provide severance pay upon dismissal of everyone. The amount of payment in this case must be at least 1 month of the employee’s salary for the period of employment, but not more than two months. In some cases, the period is extended by the employment service, provided that the dismissed person applied there no later than 14 days from the date of termination of the working relationship with the employer's company.
Upon dismissal due to staff reduction
If a reorganization is planned at the enterprise, which entails a reduction in the number of employees, then management is obliged to provide severance pay upon dismissal to everyone (in accordance with Article No. 178 of the Labor Code). The amount of the payment is equal to the person’s average monthly income and is transferred to his current account or card on the day of the official termination of cooperation.
What payments are due to an employee upon dismissal?
The size and type of payments received by a citizen depends on the specific case. If an employee submits a written application with a request to dismiss him at his own request, then he can only count on salary and compensation for unused vacation. If the employer decides to terminate cooperation, then all the above amounts and severance pay are paid. In the terms of the contract, the employer could specify other payments that are also made upon termination.
Heads of enterprises upon dismissal due to the transfer of the company and all property to another owner or for other reasons receive severance pay. However, the contract can be terminated at the initiative of the manager, in which case no payment is made. Special conditions are provided for law enforcement agencies, courts, and public service. This category has special regulations that reflect the amount of payments and the conditions for their recalculation, depending on the specific case.
Earnings for the period of employment
If cooperation is terminated due to staff reduction or liquidation of the enterprise, then dismissed citizens continue to receive wages. The condition does not apply to those who work part-time or seasonal employees. For all regions, a payment amount equal to one average monthly salary is provided (excess is allowed, but not more than three times). If the enterprise is located in the Far North, then compensation should not exceed the average salary by more than 6 times.
Compensation for early dismissal
If a mass layoff begins at an enterprise, the employer is obliged to notify all persons with whom it is planned to terminate cooperation 60 days in advance of the need to look for a new job. However, early dismissals without warning do occur. This option provides additional compensation. The severance pay is calculated taking into account the employee’s income. The payment must be proportional to the time until the notice period expires.
Compensation for top managers
For management positions, the Labor Code provides special payments. Compensation to top managers is due in the following cases:
- The owner of the company has changed (they pay compensation for dismissal to the chief accountant, management, and deputies).
- The manager is fired without giving a reason (provided that he did not violate the company’s routine and did his job efficiently).
They pay compensation to managers upon dismissal in the amount of three average monthly salaries. It is important to take into account that the legislation has not established other payments for top managers (monthly salary until employment or severance pay). However, additional conditions may be reflected in the employment contract (increase in compensation provided for by the Labor Code, etc.).
Amount of severance pay upon dismissal
The Labor Code applies to all enterprises, including entrepreneurs. The amount of severance pay is established taking into account the position and income of the dismissed person and is equal to the average monthly salary. If an employee is fired due to downsizing or liquidation of the company, the amount must be at least 1 salary. The payment may be increased at the initiative of the employer. Compensation is issued on the day of dismissal, in addition, the employee continues to receive wages until he finds a new job, but no more than 3 months.
Other conditions apply to persons who hold leadership positions. If the owner of the company initiated the termination of the employment contract, then benefits are accrued to this category in the amount of three times the salary. The reasons for canceling the payment are considered to be proven guilt of the manager (violation of the terms of the contract, theft of property, absenteeism, tardiness, etc.).
How to calculate severance pay
To find out the amount you are entitled to upon dismissal, you can use the formula: A*B. A is the ratio between the average salary of an employee and the actual time worked. The figure can be calculated using the formula A=C/E (C is the salary for the billing period, E is the number of days worked). B is the number of days for which benefits are accrued.
For example, with a monthly salary of 20,000 rubles and 20 days actually worked, the ratio will be 1,000 rubles. (20000/20=1000). If an employee needs to pay benefits for 14 days, then its amount will be 14,000 rubles (1000*14). For any calculation system (salary, hourly, piecework), the same formula is used. Regardless of whether the employee is employed immediately or not, he has the right to receive all benefits and compensation in full.
Personal income tax on severance pay upon dismissal
An important issue for every Russian remains the taxation of severance pay. By law, this payment does not provide for the accrual of personal income tax. However, there is an exception. A tax of 13% is levied if the amount of severance pay exceeds three times the monthly salary. If we are talking about regions of the Far North and regions that can be equated to such, then personal income tax is charged on six times the salary. An important condition is that all payments must be made through accounting and documented in the prescribed manner.
Insurance contributions from severance pay
The legislation does not provide for the calculation of insurance contributions for severance pay. The following cases are exceptions:
- the manager, on his own initiative, decided to pay the dismissed employee (the benefit is not provided for by state law);
- the payment amount exceeds the established limit.
Registration and terms of payment of severance pay
If the employment contract is terminated, the employer must make a full settlement of the workers. The employee must receive all money due on the day of dismissal (transfer to a card or in cash through the accounting department). If the day of termination of cooperation was a weekend, then the dismissed person must receive payment at the beginning of the working week. If a dispute arises between the parties, the employer must pay on time the amount that was not disputed.
Registration of the benefit includes several stages:
- Preparation of a normative act, agreement or order (grounds for payment).
- Familiarization of the employee with the relevant documents.
- Formation of a reporting document according to form T-61.
- Issuance of funds or transfer to the employee’s account.
When is compensation paid upon dismissal?
Many Russians have not used their allotted vacation for years due to bad times, financial difficulties and other reasons. It is important to note that failure to provide workers with well-deserved rest for more than two consecutive years is prohibited by the legislation of the country. You can take vacation before dismissal or receive monetary compensation for it. The payment is calculated taking into account the category of the dismissed person, position, length of service, absence from work without good reason, availability of leave at one’s own expense/to care for a child.
Video
Upon dismissal due to liquidation of the organization or staff reduction, pay the employee:
- severance pay in the amount of average monthly earnings;
- average earnings for the period of employment, as a rule, no more than two months from the date of dismissal (including severance pay).
At the same time, keep in mind that there are restrictions on the amount of payments for managers (their deputies) and chief accountants of organizations in the authorized capitals of which the participation (shares) of the Russian Federation is more than fifty percent, as well as members of collegial executive bodies who have entered into employment contracts with these organizations.
The total amount of severance pay, compensation and other payments upon dismissal paid to these employees cannot exceed three times the average monthly salary. Therefore, if payments to such employees threaten to exceed the established amount, pay them in an amount that will not exceed the amount.
When determining the total amount, do not take into account the amount of the following payments:
- wages due to employees;
- average earnings retained when sent on a business trip, for off-the-job vocational training, and in other cases when the employee retains average earnings under labor legislation;
- reimbursement of expenses associated with business trips and relocation to work in another area;
- compensation for all unused vacations;
- average monthly earnings saved for the period of employment.
This procedure is established in Article 349.3 of the Labor Code of the Russian Federation.
Calculation of severance pay
Calculate severance pay using the formula:
Severance pay in the amount of average monthly earnings is the minimum limit. At the same time, the average monthly earnings of an employee who worked the full working hours during the billing period cannot be less than 1 minimum wage. After all, such a minimum is established for salaries(Article 133 of the Labor Code of the Russian Federation).
Average daily earnings
How to determine the average daily (hourly) earnings of an employee, see recommendation.
Average earnings for the period of employment
The amount of average earnings for the period of employment depends on when the employee gets a job again:
- if he does not get a job within the first month after dismissal, then count his severance pay against the average earnings for the first month;
- if he does not get a job within the second month after dismissal, then pay him the average salary for that month;
- if he does not get a job within the third month after dismissal, then pay the average salary only if within two weeks after dismissal the employee applied to the employment service, but was not employed (confirmed by the decision of the employment service).
Thus, severance pay is paid for the first month after dismissal. In this regard, the average earnings for the period of employment for the first month after dismissal do not need to be calculated.
Calculate the average earnings for the period of employment for the second and third months using the formula:
Such rules for the payment of severance pay and average earnings for the period of employment upon dismissal in connection with the liquidation of an organization (reduction of staff) are provided for in Article 178 of the Labor Code of the Russian Federation.
Situation: is it necessary to pay a dismissed employee the average salary for the period of employment if he got a new job in the middle or at the end of the second month after dismissal?
Yes need. Proportional to the time during which the dismissed employee was not employed.
It is explained this way. Upon dismissal due to liquidation of the organization or reduction of staff, in addition to severance pay, the organization is obliged to pay the dismissed employee the average salary for the period of employment, not exceeding two months from the date of dismissal (in exceptional cases - three months). This is provided for by Part 1 of Article 178 of the Labor Code of the Russian Federation.
This means that in case of employment within the second month, the employer is obliged to pay the former employee the retained average salary. But only for those working days of the month during which this person did not work.
This position is adhered to by specialists from the Russian Ministry of Labor in oral explanations.
An example of paying average earnings for the period of employment. The employee started a new job in the middle of the second month after being fired
- severance pay;
During the second month (from February 13 to March 12, 2015) after his dismissal, Bespalov got a new job. His employment date was March 2, 2015. The number of days during which Bespalov was listed as unemployed was 11 working days (from February 13 to February 27 inclusive), which is confirmed by the absence of entries in his work book. On March 2, he was paid the average salary for 11 working days. The amount of average earnings for the period of employment for the second month after dismissal was:
11 days × 971.66 rub./day = 10,688.26 rub.
The legislation does not provide for a methodology for calculating average monthly earnings. For all cases of maintaining average earnings, a uniform procedure has been established for its calculation based on the average daily (hourly) earnings (Article 139 of the Labor Code of the Russian Federation). Therefore, when calculating the amount of severance pay, average earnings for the period of employment and compensation upon dismissal, it is necessary to use it. The different names that are used to determine the amount of payments cannot serve as a basis for using any other procedure.
For example, severance pay upon dismissal due to staff reduction (liquidation of an organization) must be paid in the amount of the employee’s average monthly earnings (Article 178 of the Labor Code of the Russian Federation). This means that the employee’s average daily (hourly) earnings must be maintained for a month after dismissal. Calculate compensation to an employee for early dismissal in proportion to the time remaining before the expiration of the notice period for termination of the employment contract (Article 180 of the Labor Code of the Russian Federation).
When a manager is dismissed by decision of the owner, he is paid compensation in the amount of three times the average monthly salary (Articles 181, 279 of the Labor Code of the Russian Federation, Resolution of the Constitutional Court of the Russian Federation of March 15, 2005 No. 3-P). In this case, compensation should be calculated based on the average daily (hourly) earnings and working days (hours) during the first month after dismissal (Article 139 of the Labor Code of the Russian Federation, clause 9 of the Regulations approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922 ). Then it needs to be multiplied by three.
Calculate your average earnings based on the number of working days in a month, focusing on the part-time working week calendar.
In this case, the general rule applies: to calculate the average earnings, you need to multiply the average daily earnings by the number of actual working days in the period for which payment is due (clause 9 of the Regulations approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922). There are no specific provisions in the law for cases where an organization establishes a part-time work week. Just pay for the number of working days per month, taking into account this operating mode.
An example of paying average earnings for the period of employment. The employee did not start a new job in the middle of the second month after being fired. After the dismissal, the organization switched to part-time work
A.V. Volkov worked as a storekeeper, his salary was 20,000 rubles. per month. On January 13, 2015, he was fired due to staff reduction.
After the dismissal (from January 14, 2015), the organization introduced a four-day working week.
In connection with his dismissal due to staff reduction, Volkov is entitled to:
- severance pay;
- average earnings for the period of employment.
Volkov's severance pay was paid on the day of his dismissal - January 13, 2015. To determine severance pay, the calculation period is the time from January 1 to December 31, 2014. Volkov’s earnings for this period amounted to 240,000 rubles. (RUB 20,000/month × 12 months). During the pay period he worked 247 days.
Volkov's average daily earnings were:
240,000 rub. : 247 days = 971.66 rub./day.
In the first month after dismissal (from January 14 to February 13, 2015), according to the four-day working week calendar, there are 18 working days. The severance pay was:
Within two months after his dismissal, Volkov was unable to find a job, which is confirmed by his work book.
To maintain the average earnings for the first month, the accountant counted the paid severance pay.
In the second month (from February 14 to March 13, 2015), according to the four-day working week calendar, there are 14 working days. Average earnings for the second month were:
14 days × 971.66 rub./day = 13,603.24 rub.
An example of calculating severance pay and average earnings for the period of employment for an employee dismissed due to the liquidation of the organization
In the organization P.A. Bespalov works as a storekeeper, his salary is 20,000 rubles. per month. On January 12, 2015, he was fired due to the liquidation of the organization. Therefore, Bespalov is entitled to:
- severance pay;
- average earnings for the period of employment.
Bespalov's severance pay was paid on the day of his dismissal - January 12, 2015. To determine severance pay, the calculation period is the time from January 1 to December 31, 2014. Bespalov's earnings for this period amounted to 240,000 rubles. (RUB 20,000/month × 12 months). During the pay period he worked 247 days.
Bespalov's average daily earnings were:
240,000 rub. : 247 days = 971.66 rub./day.
In the first month after dismissal (from January 13 to February 12, 2015) there are 23 working days. The severance pay was:
23 days × 971.66 rub./day = 22,348.18 rub.
The day after his dismissal, Bespalov registered with the employment service.
During the first month after his dismissal (from January 13 to February 12, 2015), Bespalov was unable to find a job. To maintain the average earnings for the first month after dismissal, the accountant offset the amount of severance pay paid in connection with the dismissal.
During the second month (from February 13 to March 12, 2015) after his dismissal, Bespalov was also unable to find a job, which is confirmed by the lack of entries in his work book. Therefore, on March 13, 2015, he was paid his average salary. In the second month after dismissal (from February 13 to March 12, 2015) 18 working days. The amount of average earnings for the period of employment for the second month after dismissal was:
18 days × 971.66 rub./day = 17,489.88 rub.
During the third month (from March 13 to April 12, 2015) after his dismissal, Bespalov was also unable to find a job, which was confirmed by the lack of entries in his work book and the decision of the employment service. Since he contacted the employment service in a timely manner, the organization is obliged to pay him the average salary for the period of employment for the third month after dismissal. Therefore, on April 13, 2015, Bespalov was paid his average salary. In the third month after dismissal (from March 13 to April 12, 2015) there are 21 working days. The amount of average earnings for the period of employment for the third month after dismissal was:
21 days × 971.66 rub./day = 20,404.86 rub.
Situation: is it necessary to pay the average salary for the period of employment for the third month to a pensioner dismissed due to the liquidation of the organization (staff reduction)?
Yes need.
Pensioners have the same rights and responsibilities as other employees of the organization. Despite the fact that pensioners are not recognized as unemployed (clause 3 of Article 3 of Law No. 1032-1 of April 19, 1991), they are entitled to payment of average earnings for the period of employment. Article 178 of the Labor Code of the Russian Federation does not provide for any exceptions for them.
A similar point of view was expressed in the letter of Rostrud dated February 11, 2010 No. 594-TZ.
Payments in the Far North
Average earnings for a period of employment of up to three months (including severance pay) are retained for employees who work in the Far North and equivalent areas upon dismissal due to:
- liquidation of the organization;
- staff reduction.
Unlike the general rule, such employees do not need a decision from the employment service to maintain their average earnings for the third month of employment. This is stated in Part 1 of Article 318 of the Labor Code of the Russian Federation.
In addition, the average earnings in these cases can be retained for such employees for a period of up to six months based on the decision of the employment service. This is possible if, within a month after dismissal, the employee contacted this service, but was not employed by it. These are the rules of Part 2 of Article 318 of the Labor Code of the Russian Federation.
A similar procedure for dismissal due to liquidation of an organization or reduction of staff applies to employees working:
- in areas not classified as regions of the Far North and equivalent areas, but included in the list of territories where regional coefficients and percentage increases in wages are paid (determination of the Supreme Court of the Russian Federation of November 11, 2005 No. 53-B05-9). For example, in the southern regions of the Irkutsk region and Krasnoyarsk Territory;
- on the territory of closed administrative-territorial entities (clause 4 of article 7 of the Law of July 14, 1992 No. 3297-1).
Payments to union members
Employees who were elected to the trade union and released from their main job are paid the average salary not by the organization, but by the all-Russian (interregional) trade union in the following order.
Their average earnings for the period of employment, but not more than six months, are retained upon dismissal due to:
- the inability to provide the previous or other equivalent job (position) at the end of the employee’s term of office in the trade union;
- liquidation of the organization.
If an employee undergoes retraining or training, then his average salary can be retained for up to a year after dismissal.
Such rules are established by Article 375 of the Labor Code of the Russian Federation.
Dismissal due to violations during the conclusion of the contract
Employees dismissed due to a violation of the procedure for concluding an employment contract, which precludes the possibility of continuing work, are paid severance pay only if this violation occurred through the fault of the organization. The amount of severance pay is the average monthly earnings. If the violation of the order was committed through the fault of the employee, do not pay him severance pay. This is stated in paragraph 11 of part 1 of article 77 and part 3 of article 84 of the Labor Code of the Russian Federation.
In connection with the latest events that have developed around the economic situation in our country, many enterprises are forced to reduce their staff in order to withstand the economic crisis and not stop production.
Moreover, one of the most popular ways to fire your employees is the “by agreement of the parties” option.
But what does this mean? What payments can I claim? Is tax deductible from them?
When is the benefit provided? How to register it and what needs to be done for this?
Let's consider all these questions in more detail.
Legislative regulation of the issue
In itself, the process of dismissing citizens from their official jobs in the current legislation is regulated by many regulations. To avoid the possibility of deceiving yourself, you need to know the basics.
In particular, the issue of dismissal by agreement of the parties is regulated by the following: articles of the Labor Code of the Russian Federation:
In addition, it is necessary to remember Tax Code of the Russian Federation, which regulates the issue of taxation of severance pay upon dismissal by agreement of the parties.
To whom and in what situations are these payments due?
For today, severance pay is paid Absolutely all citizens of our country who officially carried out their labor activities, and regardless of the reasons for which they had to terminate the employment agreement. This nuance is described in detail in the Labor Code of the Russian Federation.
An identical situation arose with payment of benefits upon dismissal by agreement of the parties which is carried out directly by the employer himself. At the same time, the conditions for dismissal themselves can be varied.
If we talk about the situations themselves, dismissal may be due to the mothballing of the enterprise, modernization, or a reduction in production capacity, which implies a reduction in staff. 
Benefit amount
First of all, it is necessary to remember that in compensation payments by agreement of the parties the following may be included:
- wages that have not yet been paid to the employee for the last period worked;
- bonuses and other payments that may be prescribed by collective agreement.
Possibility allowed inclusion in the dismissal benefit by agreement of the parties and other payments that do not appear in any regulatory act. This is possible solely at the discretion of the employer. In most cases, we can talk about “compensation”, since it is the employer who is always the initiator of dismissal in this way.
But at the same time it is necessary take a responsible approach to dismissal on staff reduction in such situations if:
In these situations, you should not succumb to provocations and sign an agreement. This is due to the fact that the employer probably wants to reduce the amount of payments, since in the above cases the benefit will be at least 2 salaries. This possibility is clearly defined by current Russian legislation.
In addition, if a dismissed employee decides to become an employee, then he is paid a good amount as social support.
If we talk about the compensation itself, this issue is regulated by Letter No. 03-03 of the Ministry of Finance of the Russian Federation.
According to this legislative act, if the collective agreement does not provide for compensation, then they can be specified in the generated additional regulatory act. Moreover, the amount of such payment is not provided for at the legislative level, therefore the employer independently sets the amount.
In most cases, the amount of compensation is determined by the number of salaries. For example, upon dismissal, by agreement of the parties, they can pay 3 official salaries or only 2.
The employer himself needs to pay attention to the fact that such payments must be recorded in the calculation note in form No. T-61. This is provided for by Resolution of the State Statistics Committee No. 1.
An employee who is resigning by agreement of the parties must carefully read the signed document, since employers often use tricks to significantly reduce the amount of compensation payments.
For example, an employer can indicate compensation without deduction for profits for individuals - this will be completely legal from the legal side.
Taxation
Today, the legislation of the Russian Federation implies income taxation for individuals in the amount of 13%.
This rate is fixed and applies to all residents of the Russian Federation. Moreover, taxation may also be subject to severance pay, but only if certain conditions are met.
According to current legislation, in particular Article 217 of the Tax Code of the Russian Federation, no tax is collected from compensation payments that are in any way related to the dismissal of an employee. However, there are restrictions on amounts.
In particular, not confiscated:
- if the amount of payments by agreement of the parties does not exceed triple the official salary (average);
- if the amount of payments does not exceed six times the official salary (this option applies to citizens who carried out their labor activities in the Far North region).
In other situations, each employer must pay personal income tax, including other contributions to extra-budgetary funds, even on compensation payments.
It must be remembered that this rule applies to all employees, regardless of their position and salary (according to Resolution of the Ministry of Finance No. 03-04).
Payment of insurance premiums
Questions about payment of insurance premiums Until recently, severance pay upon dismissal by agreement of the parties caused many disputes and disagreements. First, let's look at the funds' positions on this issue.
Position No. 1. The current legislation states that insurance premiums should not be paid from those payments that are given to an employee upon dismissal by agreement of the parties. In this case, the exception is compensation for unused vacation (in accordance with Federal Law No. 212, Article 9, as well as Federal Law No. 125, Article 20.2). Due to the fact that payments upon dismissal by agreement of the parties are not regulated at the state level, insurance premiums must be charged on it.
Position No. 2. The very object of taxation with insurance premiums can only be recognized as those payments that are remuneration for performing any work within the framework of relationships between individuals and employers under civil, labor and other agreements (in accordance with Article 1 of Federal Law No. 212 and Article 20.1 of Federal Law No. 125).
According to the above, the payment of compensation due to dismissal does not fall under the category of labor relations and cannot be included in the base for calculating insurance premiums.
To put it in simple words, then insurance premiums are not charged.
Registration procedure
Severance payment process is as follows:
- Formation of the document (the contract itself).
- Notification of the creation of such a document to employees, as well as presentation of the agreement to them for review.
- Creation of reporting document T-61.
- Carrying out payment of benefits stipulated by the contract.
Each stage may include some nuances. In this case, the key nuance comes at the employee familiarization stage.
The issue of familiarization is regulated by current legislation. It must be remembered that it must be documentary confirmation that the employee has been notified.
This could be:
- a corresponding mark on the completed contract itself. In most cases, this is the employee’s usual signature;
- a statement from the employee, which can become the main confirmation of familiarization (the statement must necessarily indicate the basis for dismissal - “by agreement of the parties”).
After the agreement itself has been drawn up by the management of the enterprise and the employees have been familiarized with it, the accounting department makes calculations the severance pay itself, while generating a reporting document in form T-61.
IN form T-61 the following information is included:
Since this document may be submitted to the tax office for verification, it must be compiled without any errors.
Payment terms
Payments can be made in several ways, namely:
- on the day of dismissal;
- or at another time.
By “other time” we mean payment for a period of up to 2 months or more. But at the same time, it is necessary to remember one nuance - this is considered legal only if such a period is specified in the dismissal agreement.
If the payment period stipulated by the contract is violated by the employer, there are all legal grounds for law enforcement agencies to register an administrative offense.
The rules for payment and calculation of severance pay upon dismissal are discussed in the following video tutorial:
By terminating the contract with the employer, the employee can count on receiving severance pay. This right is guaranteed to him in Article 178 of the Labor Code of the Russian Federation.
Severance pay is monetary compensation paid to an employee in connection with dismissal, regardless of the reasons. Such compensation provides a guarantee of financial security during the period of searching for a new job.
The right to end employment is ensured by compliance with the Labor Code of the Russian Federation and according to the terms of the Employment Agreement. To put it simply, there must be sufficient grounds for dismissing a worker. For each of them, 2018 provides for its own dismissal procedure.
A common point is the publication of an order by the employer indicating the reasons for dismissal and final payments. And a record of dismissal is made in the work book, indicating the article of grounds under the Labor Code of the Russian Federation.
Deadlines for final payments, including payment of severance pay, last day of work. But in some cases, the employee retains his average daily salary for a period of up to three months, and up to six months for the Far North regions.
Who is paid severance pay?
- Employees dismissed due to the closure of the organization;
- Employees who have been reduced in staff or size of the organization;
- An employee who has been called up for military or alternative service;
- The employee who takes the place of a previously dismissed employee has been reinstated by the court or labor inspectorate;
- An employee who refused to be transferred to another location due to the relocation of the employer;
- An employee who cannot perform his functions according to a medical report, in case of refusal to move to another job or the absence of suitable work for him;
- An employee who has completely lost his ability to work due to health reasons;
- An employee if he refuses significant changes to his working conditions;
- An employer dismissed from office by decision of the founders (clause 2 of Article 278 of the Labor Code), in the absence of guilty actions on his part;
- The employer, his deputies and the chief accountant removed from their positions by the new owners of the organization;
- An employee dismissed due to the cancellation of an employment contract, if such a contract was concluded in violation of the law due to the fault of the employer. We are talking about significant violations that prevent the performance of official duties:
- A court decision according to which a person does not have the right to hold certain positions;
- Lack of special education;
- There are diseases;
It should be noted that if the manager, at the time of concluding the employment contract, did not require from the applicant a document confirming the absence of restrictions on work established by law, then regardless of whether the employee knew about these restrictions or did not know, he is entitled to payment in the event of dismissal due to such circumstances severance pay.
Who is not paid severance pay?
- Dismissal at one's own request (clause 3, part 1, article 77);
- Dismissal on the initiative of the manager when the employee has committed an offense incompatible with the continuation of work (on the grounds of Article 81 of the Labor Code, which provides for the employee’s guilt);
- Failure to complete the probationary period (Part 1 of Article 71);
- Dismissal by agreement of the parties (clause 1, part 1, article 77);
- Termination of an employment contract with a validity period of less than two months (fixed-term employment contract) (clause 2, part 1, article 77).
Amounts of severance pay in 2018
The amount of severance pay depends on two values: the employee’s average earnings and the period that the manager compensates.
- The benefit in the form of two weeks' average earnings is due to:
- If the manager does not have a position corresponding to the employee’s health status in accordance with the medical report;
- Complete loss of ability to work;
- Conscript to the army forces;
- Refusal to move to another area;
- Reinstatement of the former employee;
- There was disagreement with the new working conditions;
- Dismissal of seasonal workers due to organization closure and layoffs;
- Payment of 1 average monthly salary provides a guarantee upon termination of an employment contract concluded in violation of the law;
- Employers and chief accountants dismissed due to a change of owners or by decision of the founders can count on 3 average monthly earnings;
The largest compensation is provided for by law in case of closure of an organization. These also include cases of reduction in numbers and staff. In addition to the 1st average monthly salary, the manager is obliged to maintain the employee’s average salary for the period of his employment for 2 months.
By decision of the employment center, this period may be extended by one month. For regions of the Far North and equivalent territories, these periods increase to six months. TC stands for minimum severance pay. An organization may have a collective agreement or other acts that provide guarantees of increased benefits and compensation.
To calculate many types of payments, the amount of average earnings is used, the payment procedure for which is described in Article 139 of the Labor Code of the Russian Federation. Average daily earnings are determined by dividing the amount of all payments to an employee for the billing period by the number of actual days worked during this period. For these purposes, the legislation establishes a billing period equal to the twelve previous calendar months.
Payment calculation example
The amount of benefit payments is calculated using the formula: Benefit = SDZ * RDP
where, SDZ – average daily earnings;
RDP – working days of the period for which benefits will be paid.
Let's look at an example:
Cook Ivanov I.A. quits his job due to conscription into the army. October 9 is his last day of work.
Salary of Ivanov I.A. is 15,000 rubles per month. He has been working at the company since June 12 of this year on a five-day work week. The entire period has been fully worked out.
On the day of dismissal, Ivanov must be paid wages for October, compensation for unused vacation and two-week severance pay.
We will not consider compensation calculations in this example.
In October there are 22 working days, Ivanov I.A. worked 4 of them. We calculate wages for October:
15000: 22 * 4= 2727 rubles
To calculate severance pay, you need to calculate your average daily earnings.
Formula: SDZ = ZP / OD
Salary – earnings for the billing period (5 months)
OD – number of days worked
The billing period is 12 calendar months from the 1st to the 30th (31st). But in our case, the worker has only 4 of them (from June 12 to September 31), which corresponds to 109 working days according to the production calendar, which are fully worked out.
We take these four months into account, since severance pay is paid for working days, and not for calendar days, only 10 days (minus weekends) are taken into account for the calculation of a two-week (13-day benefit).
And if there are also holidays in the next 2 weeks after the day of dismissal, then they are also deducted.
Severance pay = 483.87* 10 = 4838.70 rubles.
Taxation of severance pay personal income tax
Severance pay refers to the income of individuals that is not subject to taxation in accordance with Article 217 of the Tax Code of the Russian Federation. In terms of the norms established by the Labor Code, they are not subject to personal income tax.
The enterprise is exempt from charging insurance premiums for benefits paid. The exception is cases when, in accordance with acts or on the initiative of the manager, the amount of benefits exceeds the legally established norms. In this case, personal income tax and insurance premiums are charged on the amount exceeding the specified norms.
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