What to do if payment is delayed. What is the penalty for late payment of vacation compensation upon dismissal?

A person can quit his job for various reasons. However, in any case, the management of the enterprise must make a final settlement with the employee before parting.

This includes not only the salary itself, but also unpaid vacation pay, bonuses, compensation, severance pay, etc.

But what to do when the administration, even after the termination of relations, does not want to give away what they honestly earned under any pretext? Detailed Guide read on for action.

When are you required to pay compensation upon dismissal? So, the legislation (namely, paragraphs of Article 140 of the Labor Code of the Russian Federation) clearly states that the calculation must be made on the final day of the existence of the relationship with the employer.

However, in practice this rule is fraught with several exceptions.

For example, if an employee on the date of his dismissal was on a business trip or was forced not to be at work due to and other objective circumstances, then it is necessary to address his demand in writing to the company administration for making all necessary payments.

It is advisable to deliver it through the office of the enterprise or send it by mail, having issued ordered letter, a description of the attachment to it and a return notification.

Then all calculations must be made literally within the next day after the company receives the relevant document.

Financial liability of the employer for delay in payment of the settlement

First of all, this is compensation for violation of the deadline for providing all due amounts (payment not paid on time).

If you don’t have the energy and time to litigate, you can try to resolve the dispute with the employer through other structures.

Labor relations between the employer and his subordinates are established by law. One of important points at any production activities is the conclusion of employment contracts and their termination. A person leaving his job can occur for many reasons. Today we’ll talk about the timing of calculations upon dismissal at will.

What does it mean to resign on your own initiative?

Every citizen who has reached the age of late adolescence has the right to get a job and accordingly takes advantage of this opportunity to earn money. When mastering any profession, a person moves from a beginner to an experienced worker who has all the tricks and secrets of his trade.

But, as they say: “Fish looks for where it’s deeper, but man looks for where it’s better.” Therefore, quite often, in search of a new highly paid job, we say goodbye to our old ones. job responsibilities and learn new ones or simply move to another employer who agrees to pay more for our services.

All these conditions, and one should not exclude unforeseen life circumstances (illness or moving to a new place of residence), lead to the fact that a person writes a letter of resignation on his own initiative.

How is dismissal on one’s own initiative legally established?

The basic rules for dismissing employees who have made this decision themselves are enshrined in Article 80 of the Labor Relations Code. According to this article, the employee must writing give your employer two weeks' notice of dismissal.

This period begins to count on the next day after the boss receives the letter of resignation.

If both sides labor relations If they don’t mind, the employment contract can be terminated earlier.

Also, if the employee decides to remain in his position, he can withdraw the application until the period given for notice of dismissal expires. The citizen remains in his place if a new employee is not invited to this position. It should be remembered that a new employee must be invited to work in writing.

Despite the fact that this type of dismissal is regulated by Article 80, an entry in the work book is made on the basis of paragraph three of Article 77 of the Labor Relations Code.

In what cases does dismissal on an employee’s own initiative occur without two weeks of work?

An employee may leave his job duties on the day specified in the application in the following cases:

1. It is impossible to continue working due to retirement age or enrollment in educational institution, accredited to conduct educational activities.
2. Violation of the collective agreement by the employer, employment contract or agreement or other legislation in the field of labor relations.

When is the final payment made upon dismissal?

After the warning period has expired, the employee resigns and is considered dismissed.

The employer gives him a work book with a note of dismissal on his own initiative, other working documents specified in the employee’s application, and makes final payments to him upon dismissal.

If, after the expiration of the work period, the employment agreement is not terminated and the employee continues to perform his job duties, then the employment contract continues to be valid.

Who gets fired without a period of 2 weeks?

If an employee was recently hired for a position and his employment contract specifies a probationary period that has not yet expired, then his dismissal must be formalized within 3 days. Payment upon dismissal is also required to be issued on the day of dismissal.

Seasonal workers hired for temporary jobs are fired using the same principle.

What payments are included in the calculation of employees who quit on their own initiative?

If the employee decides to terminate the employment contract on his own initiative, then his calculation should include the following payments:

1. Calculation of unused vacation days upon dismissal (compensation for vacation that was not used by the employee).
2. All existing wage arrears.
3. Payments for days worked in the month of dismissal.

You should carefully study the pay slip and make sure that the amount is calculated correctly. wage with the due bonus and allowances, and also, if this is not done, ask to pay vacation compensation.

If you have worked for many years without vacation and did not require monetary compensation for it, you should know that you will receive compensation only for the current and previous years. All other amounts are forfeited. At the same time, the employer is not obliged to remind his employees about this; they themselves must take care of payments for unused vacations.

Is severance pay paid?

This benefit is paid only during the staff reduction procedure. Therefore, those who quit on their own should not count on him.

It is also paid in the event of liquidation of the organization.

How is vacation pay calculated?

This compensation is paid if the employee did not use his regular regular vacation in the current year or used it, but not completely.

1. Let's find the number of days worked in a month: p working days of the month - days that were not attended by the employee for all reasons.
2. Let's determine the average daily earnings: payments for the calculation period/number of days worked in a month.
3. Let's calculate the compensation payment: all days worked in the month of dismissal x average daily earnings.

Deadlines for payment of compensation upon dismissal

The Labor Code of the Russian Federation, namely Article 140, stipulates that a resigning employee must receive all payments due to him on the day of dismissal.

It is generally accepted that the day a person worked last time and the day of dismissal coincide, but sometimes this is not the case. For example, if an employee works shifts every other day. The last shift was on April 13, and he quits on April 15. Thus, the last working day is in the second spring month comes out on the 13th, and the day of dismissal will be the 15th. This means that the calculation period for voluntary dismissal in this case falls on April 15.

Article 140 also mentions that if these two days do not coincide, the employee must submit a claim to the employer for his calculation. It is not clear whether it is spoken or written, since this is not specified in the law.

What are the consequences for an employer of non-payment of wages on the day of dismissal of an employee?

If the employee is not paid upon dismissal, then the law, namely Article 236 of the Labor Relations Code, stipulates that the employer must pay compensation for each day of delay. It is equal to 1/300 of the Central Bank refinancing rate Russian Federation which is currently in effect. The formula for calculating compensation is as follows: Compensation = Refinancing rate / 100% x 1/300 x Amount of debt x Number of overdue days

For violation of the payment deadline when dismissing at one's own request, the employer faces administrative and criminal liability.

Responsibility for non-payment of wages upon dismissal

Delay in payment upon dismissal results in liability in the following cases:

1. If there were funds in the organization’s accounts, but the employer did not pay wages, but spent all the money on the purchase of new equipment or on paying off accounts payable.
2. If the delay lasts two months or more, the settlement amount has not been paid in full. If the debt is partial, then liability occurs after three months of delay.

Administrative and criminal liability for late payment of settlement?

Violation of the payment deadline for voluntary dismissal leads to the following consequences:

1. If the delay lasts two days, the employee has the right to demand compensation for this.
2. Also, small delays lead to administrative liability for the employer. In this case, penalties are imposed. The size of the fine depends on whose fault the delay in settlement occurred. If it's the manager's fault, how individual, then the fine will be up to 50,000 rubles if the organization is to blame, such as entity, then up to 100,000 rubles.
3. Longer delays lead to criminal liability.

However, most often the employer or organization pays penalties, as this is more beneficial for the state.

Where can employees seek protection from unlawful actions of their employer?

In case of violation of the terms of payment upon dismissal on his own initiative, the employee has the right to seek help from the court, the prosecutor's office and the labor inspectorate.

To protect yourself, before contacting punitive authorities, you must file a claim with your employer. This is necessary so that your superiors do not declare that you yourself did not show up for payment.

The claim must indicate the day of dismissal, information about non-payment of wages and intentions to appeal to the justice authorities.

The claim must be written in duplicate and registered with the secretary. One copy with the incoming number is sent to the manager, and the other remains with the employee.

You must remember that the labor inspectorate has the right to consider your application within 30 days and should contact it no later than three months after receiving the dismissal order and work book with a record of dismissal on his own initiative.

The court will accept your application if you apply no later than a month.

Compensation is accrued and paid to the employee not only in case of delay in wages, but also in cases where the employer has violated the terms of other payments: vacation pay, benefits, etc. (Article 236 of the Labor Code of the Russian Federation). But for the sake of simplicity, we will call compensation for delayed payments to employees compensation for delayed wages.

Compensation for delayed wages 2019: calculator

• the amount of wages not paid to the employee on time (reflects the amount that the employee should receive in hand, i.e. minus personal income tax/other deductions from wages);
• the established date for payment of wages;
• date of actual salary payment.

Amount of compensation for delayed wages

Such compensation is calculated according to the following formula(Article 236 of the Labor Code of the Russian Federation):

The employer must pay compensation for the period of delay starting from the day following the established day of payment of wages until the day of its actual payment, inclusive. For example, employees should have received their salary on 03/06/2019, but the employer paid it only on 03/20/2019, respectively, on in this case the number of days of delay will be 14 days (from 03/07/2019 to 03/20/2019 (inclusive)).

By the way, the employer has the right to increase the amount of compensation paid. This size must be entered in collective agreement, an employment contract or in the LNA (Article 236 of the Labor Code of the Russian Federation).

Fine for non-payment of compensation for delayed wages

If the employer does not pay the employee compensation for delayed wages, he faces a fine (Part 6, Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

• from 30,000 rub. up to 50,000 rub. - for the organization;
• from 10,000 rub. up to 20,000 rub. - for officials of the organization;
• from 1000 rub. up to 5000 rub. - for individual entrepreneurs.

Compensation for delayed wages: personal income tax

If an employee is paid compensation for delayed wages in the amount established by the Labor Code of the Russian Federation, then it is not subject to personal income tax (clause 3 of Article 217 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance dated February 28, 2017 N 03-04-05/11096). If the employer pays compensation in an increased amount, then personal income tax must be charged on the difference between the amount of compensation established by the employer and the amount established by the Labor Code of the Russian Federation.

Compensation for delayed wages: insurance premiums

Regarding the calculation of insurance premiums from compensation for delayed wages, disputes between employers and inspectors have been going on for a long time - even since the time when the Pension Fund of Russia was in charge of contributions. The thing is that this type of payment is not directly listed in the list of non-taxable ones. In this regard, according to the Ministry of Finance, contributions must be calculated from compensation for delayed salaries (see, for example, Letter of the Ministry of Finance dated September 24, 2018 No. 03-15-06/68161; Letter of the Ministry of Finance dated September 24, 2018 No. 03-15-05 /68049). However Supreme Court believes that compensation for delayed wages refers to compensation related to the employee’s performance of his job duties, which in turn are not subject to contributions (Decision of the Supreme Court dated 05/07/2018 No. 303-KG18-4287). But if you are not ready to take the dispute with the tax authorities to court, it is safer to charge contributions from compensation for delayed wages.

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

Reasons

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

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

Types of payments

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

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

TO additional types Monetary support may include: dismissal benefits by agreement of the two parties, as well as other types of material compensation established by the collective agreement.

Procedure for issuance and retention

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

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

Vacation pay calculation

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

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

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

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

Rules for calculation upon termination of an employment contract

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

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

Care on your own initiative

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

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

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

When it is impossible to make deductions for unworked vacation

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

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

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

its calculation and size

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

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

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

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

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

Example of final calculation

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

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

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

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

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

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

Arbitrage practice

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

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

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

The 2016 Act was issued to support the interests of employees. But has the legislator really thought through the mechanism of its action and possible consequences? Indeed, on the basis of this document, criminal liability may be applied to managers.

Punishment of the manager for delay in salary and payments upon dismissal

Real repression awaits those careless managers who, to the detriment of their employees, do not pay their due payments on time. Such payments include:

• monthly salary and other remuneration for work
• bonuses and incentive payments
• financial assistance and benefits
• compensation and settlement upon dismissal
• annual holiday pay

If the issuance deadlines are not met, the law proposes to punish the employer, but there may be other grounds for this. These include:

• 3 month delay in payments
• less than ½ of the salary is transferred to the employee’s account
• payment delay was 60 days
• paid less than the contract amount

If the delay in salary has caused serious harm to the employee, the employer's punishment may include imprisonment. At the same time, the obligation to pay money is not removed from the manager. He is obliged to transfer payments to employees already with penalties and fines.

PLEASE NOTE: it is legally possible to reduce the amount of payments for penalties and interest due if there are no funds in the company’s accounts and balance sheet.

It is possible to imprison a manager if there are sufficiently compelling reasons according to which the court recognizes that the employer deliberately failed to comply with the requirements - as enshrined in Article 14 of the Criminal Code of the Russian Federation.

Responsibility for non-payment of payment upon dismissal

Law enforcement officers have incorporated into laws special provisions against bosses who violate labor law. They are subject to punishment in the form of material, administrative and even criminal liability. The owner of the company has the right to apply disciplinary action to such a manager.

If a manager, contrary to sound logic, neglects his duties, measures may be taken against him in the form of:

• material obligations to employees
• real criminal liability
• administrative and disciplinary punishment

Article 142 in its 2nd part of the Labor Code of the Russian Federation states that if a manager, vested with the power to decide when to pay and when to delay payment of wages, does not fulfill his duties on time and the delay is more than 15 days, the employee has every right to refuse to fulfill his labor obligations. duties, even his absence from the workplace is acceptable. Such rules are enshrined in letter of the Ministry of Labor of the Russian Federation 14 2 337 dated December 25. 2013

There are also penalties for failure to comply with the terms of payment of wages, including calculations upon dismissal, because a dismissed employee cannot punish his negligent manager by absenteeism from work. The size of the fine depends on the number of late payments that a particular director allowed himself. The amount of punishment can be from 10,000 to 100 thousand rubles. It depends on the following factors:

• characteristics of liability - administrative or criminal
• number of days/months overdue
• consequences of late payments for employees
• presence of previously established similar facts

IMPORTANT: the officials responsible for the failure to issue salaries and payments upon dismissal on time are treated as both the director and the chief accountant of the enterprise; they will together bear responsibility for this.

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