Compensation for late payment upon dismissal. Calculation period for voluntary 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.

Non-payment upon termination employment contract funds provided by law is a violation of labor laws. Often, the employer promises the dismissed employee to pay the money later or avoids payments altogether.

There is only one way out in such a situation - filing a complaint with the relevant government authorities.

All nuances in this area and the procedure for calculating such payments are regulated
Article 13 Labor Code . According to legal regulations, the day of dismissal is considered to be the last day spent by the employee at work. On the same day, the accounting department makes the final settlement with former employee.

If for any reason an employee was absent from work (for example, it was a weekend), he has the right to make a written request later for the release of funds. After such a request, the accounting department issues accrued payments no later than the next day after the specified request is presented from the employee (Article 140 of the Labor Code).

If there is a dispute about the amount of payments, the employee is given that part of the funds to which he has no claims.

The remaining money will be paid after judicial review within the time frame established by the judicial authority.

It is the responsibility of employers to issue estimated payments strictly within the time limits specified in labor legislation. However, there are often cases when payments are made on the day of issue to the rest of the employees of the organization or enterprise. Which is also a gross violation of the law.

What to do if the money is not issued?

In order not to be deceived, you need to know exactly what payments an employee who leaves his place of work is entitled to claim. Charges include:

• unpaid for the current working month (until the day of dismissal!);
• compensation accruals for periods of temporary disability (payment of sick leave, if they have not yet been paid);
• , if they have been accrued to the employee, but have not yet been paid;
• (these funds are accrued only in certain cases, for example, when calculating at their own request, the employee will not receive such benefits).

All transferred funds are issued in one payment on the day of termination of employment, that is, upon actual dismissal with the issuance of a work book.

Ways out of the situation

For officially employed

Persons who carried out labor activities under an employment contract (officially employed), if payments are delayed, they can take away the salary offered to them by an employee of the personnel department. And only after that solve the problem with filing a complaint. This is done in order not to become a hostage to the situation. After all, if a dispute arises, the employer may also delay the issuance of the work book, which will make it impossible to find a new job.

It is also necessary to clarify the reason for the delay in settlement in the accounting department of the organization or enterprise. It can be quite respectful from the point of view of the law. For example, after deduction of all due taxes and payment of wages, there were no free funds left in the budget. In this case, the dismissed employee will have to wait until the company or organization earns money.

It is necessary to take it to the accounting department, which records the size of the previously received wages(about income). This step will prevent the employer from challenging the salary data. The employee has the right to receive this document even after working his last day.

For unofficial employees

Persons who received wages unofficially, in case of delay in payments, will have to take care of collecting evidence of the fact of working at a specific enterprise or organization.

In this capacity, you can use any settlement documents previously received in the accounting department.

If the salary was given in person, bypassing the accounting department (the so-called), it will be extremely difficult to prove anything.

The only reasonable way out is to contact the prosecutor's office with a complaint, which will initiate a prosecutor's inspection of the enterprise. In most cases, the mere fact of such a check is enough for the employer to settle accounts with the former employee. After all, other unofficial employees may work at the enterprise, which threatens the imposition of fines and official proceedings.

Appeal to the courts in this case requires the employee to have witnesses who can confirm the fact of his work at the specified enterprise.

Where should I contact?

To the labor inspectorate

If there is a dispute regarding some part of the payments and a claim is made employer, the employee must contact the labor inspectorate. And only if your requirements are not met, submit lawsuit. By this point, as a rule, most of the accruals have already been paid, and the employer retains only a certain part of the funds.

There are no deadlines for contacting this body by law! The complaint is stated in free form, but it is advisable to attach documentary information about income from the accounting department (certificate).

The complaint is considered within one month. After which a written response comes from the inspector with instructions for employers, which must be fulfilled within ten days. If we are talking about reinstatement at the previous place of work, up to three months.

To the prosecutor's office

After writing an application to the inspectorate, you must submit a written complaint to the prosecutor’s office, which will initiate an inspection of the enterprise or organization, allowing you to identify all violations in the field labor relations with employees.

An application to this body is written in a unified form (on a special form). All documents are attached as evidence to the complaint. Required documents or copies thereof, including income statements. It takes up to thirty days from the date of its filing to consider the complaint.

To court

After the prosecutor's inspection or simultaneously with it, you can file a claim with the judicial authority located at the location of the organization or enterprise. The claim is drawn up in several copies, taking into account the number of all defendants, and is submitted to the court along with documents proving the guilt of the employers.

But in most cases, the prosecutor independently submits the documents collected during the inspection to the court, initiating legal proceedings.

If a claim is filed former employee, he must indicate in this document the exact reason for the delay in payment and describe all the circumstances of the violation, making reference to the provisions of labor legislation (352nd, 353rd, 381st and 382nd article of the Labor Code). The package of documents is usually formed from a copy of the passport, work book, employment contract and a certificate of the reason for the delay issued by the accounting department.

The employee should hurry up when filing a claim. The legislation imposes monthly limit for the period of filing a complaint with the court. The countdown starts from the moment the work book is issued or the day management issues the order. The case is considered within a month. A decision judgment against the employer is subject to immediate execution.

Employer's liability

In case of delay in settlement funds, employers bear financial liability (fines are imposed in accordance with Article 236 of the Labor Code).

Issued to the employee along with. The amount of interest (compensation) is directly related to the refinancing rate currently set by the Central Bank and cannot be lower than one three hundredth of this rate. The period of delay in calculating interest is counted from the day following the last day of work. Such compensation is paid for any delay, regardless of the fault of the employers!

Payment of compensation is controlled by the labor inspectorate. It is this body that should be contacted to receive wages from the employer along with the compensation required by law.

Delay in payment for a period of more than two months is punishable by the imposition of large fines on the enterprise or organization. Typically, such a fine is a consequence of legal proceedings. According to the Criminal Code (article number 145.1), employers are obliged to pay from 100,000 to 500,000 rubles to the local budget of the region.

Also, management may be prohibited from holding a position for a period of time. three years. Sometimes the right to hold leadership positions is permanently withdrawn.

​Firing from a job is a rather unpleasant and exciting situation for most people. The need to explain the situation to the employer, write a statement, uncertainty, absence stable income- all this greatly affects a person’s mental well-being.

A situation where an employer violates an employee’s legal rights and does not provide a settlement makes the dismissal procedure even more unpleasant. In addition, such a violation of the law can significantly affect a person’s financial situation - when leaving work, people, as a rule, count on a certain amount payments from a former employer. Let's consider what opportunities an employee has to receive a payment.

Settlement payment procedure

According to the Labor Code, when dismissing an employee, the employer must pay him:

• Compensation for unused vacations. This includes all vacations during the period of work at the enterprise.
• Salary for the days that a person managed to work.
• In some cases, the law provides for the payment of additional benefits to employees upon dismissal. Such a payment is due in the event of dismissal due to layoffs in connection with the liquidation of the enterprise.

Regardless of the reasons for dismissal, the organization must pay the person on his last day of work. The money can be given in person along with the work book or transferred to his bank account. If at this time he was absent from the workplace, the management of the organization must make payments after the employee submits demands for payment.

What do you need to do to receive your money?

The employer does not pay the amounts due upon dismissal? This is a fairly common situation. There can be many reasons. The most common situation is when the management of the organization and the former employee do not agree on the amount of the settlement.

The first step an employee must take is to contact the labor inspectorate. This body will help the parties to labor relations come to an agreement. It will also oblige the employer to pay the settlement amount.

Contact labor inspection did not affect the employer? The second step that will help you get your money back is going to court.

The procedure for going to court to obtain payment from the employer

When contacting the judicial authorities, it is important to take care of reliable evidence. Along with statement of claim, you need to provide:

• a copy of the employment order;
• dismissal order;
• a copy of the entry in work book about dismissal.

You can also provide other evidence: witness statements, pay slips and others relevant to the case. The main thing: they must confirm the fact of work, the average monthly salary and conscientious execution employee of his work functions.

If the plaintiff manages to prove his position, the former employer will have to pay him not only his salary, but also additional interest for late payment.

Consequences of refusing to pay an employee

Refusing to pay a former employee is quite dangerous for the organization. Such actions entail various negative consequences:

• material costs of litigation;
• the need to pay compensation to the employee for delay in payment;
• administrative responsibility.

The law provides for a fine for unscrupulous employers. At the same time, money is paid not only by the organization, but also by officials who are obliged to pay the employee on time. For officials, the fine ranges from 5 to 50 minimum wages, and for an organization - from 300 minimum wages.

The rules described above protect the rights of workers from unscrupulous employers. Financial and administrative responsibility serves as a good deterrent. The main thing is to go to court on time! The maximum period for application is one month. This government body will help protect the rights of the employee and punish the unfair employer.

When terminating an employment contract, the employer is obliged to make a full payment to the employee on the last working day. Cash payment is carried out regardless of whose initiative the contract is terminated: at the initiative of the employer or at the employee’s own request.

Sometimes there is a delay in payment of compensation upon dismissal.

An application for termination of an employment contract at the initiative of the employee is submitted to the employer 2 weeks before the date of dismissal. An exception is dismissal during the probationary period and if the work is temporary - the deadline for submitting an application is 3 days before dismissal.

The following are subject to payment:

• salary amount for the period worked;
• bonuses and other incentive payments;
• compensation for unused vacation days;
• debt in favor of the employee on advance reports: travel expenses, expenses for production and economic needs, and so on.

If the employee was absent from work on the day of dismissal, the final payment must be made the next day after receipt of his request for payment Money.

Example: last working day of Petrov A.A. – 10/01/2015 On this day good reasons he was absent from his workplace. The demand for payment of the final settlement came from A.A. Petrov. 10/12/2015 The employer is obliged to make the final payment no later than 10/13/2015. In a situation where the payment date falls on a non-working day, the final payment to the employee is made on the previous working day.

In practice, there are situations when an employee does not agree with the amount of the final payment. In this situation, the employer is obliged to pay on the last working day that part of the funds that is not disputed (Article 77 of the Labor Code). Disagreements regarding the remaining part of the calculation are resolved in court or representatives of the labor inspectorate are involved.

In the activities of an institution, there are situations when the management of the institution deliberately delays payment upon dismissal. Valid reasons include:

• failure by an employee to provide a bypass sheet;
• the presence of debt to compensate the employee for material damage;
• employee's refusal to evict office space(dormitories).

The employer's actions are not justified in the following cases:

• lack financial resources to make the final payment;
• delays caused by negligent actions of departments of the institution, personnel or financial services: untimely execution of all necessary documentation, failure to calculate the amount payable within the specified time frame and other reasons.

However, the final settlement with the resigning employee must be made regardless of the reasons for the delay (whether valid or not). If the issuance of funds within the established period is not carried out, an obligation arises to calculate daily compensation from the amount of debt not less than 1/300 of the refinancing rate of the Central Bank of the Russian Federation, inclusive until the day the debt is repaid.

The amount of compensation for delay may be greater when it is approved by a collective agreement or other local act institutions.

Example: last working day of Sinitsyn P.R. - 01.10.2015 The final settlement amount is 15,000 rubles. On the day of his dismissal, Sinitsyn was present at his official place, but despite this, the accounting department did not make the payment due to a lack of funds. The final payment was made on October 10, 2015. Thus, the delay period was 9 days (from 10/02/2015 to 10/10/2015 inclusive).

The refinancing rate set by the Central Bank for 2015 is 8.25% (for calculation, the value is taken in shares).

Calculation: 15,000 rubles * 9 days * 1/300 * 0.0825 = 37 rubles 13 kopecks - the amount of compensation for the entire period of delay. The calculated amount to be paid on October 10, 2015 is 15,037 rubles 13 kopecks.

Based on Article 78 of the Labor Code, when due to the fault of the employer there was a delay in payment of the dismissal payment, the employee has the right to demand compensation in the amount of average earnings for each day of delay. An exception is the payment of incentive bonuses (bonuses), when upon dismissal of an employee, the results of bonuses have not yet been summed up, as a result of which there is no possibility of issuing funds on the last working day.

In such a situation, payment must be made immediately after calculating the amount of bonuses (payment can be made in accordance with the planned bonus dates). It should be noted that simultaneously with the payment of compensation, on the basis of Article 237 of the Labor Code, the employee has the right to compensation for moral damage, which can be recovered in court.

Upon termination of the employment contract, all amounts due to the employee must be paid on the day of his dismissal, and if the employee did not work on that day - no later than the next day after he requested payment (Article 140 of the Labor Code of the Russian Federation, hereinafter referred to as the Labor Code of the Russian Federation ).

Part one of Art. 127 of the Labor Code of the Russian Federation establishes that upon dismissal, an employee is paid monetary compensation for all unused vacations.

Failure by an employer to comply with these legal requirements may entail a number of negative consequences for him.

1. Financial responsibility

Article 236 of the Labor Code of the Russian Federation provides for the employer’s financial liability for delays in payments provided for by law, including compensation for unused vacation. If the established deadline is violated, the employer is obliged to pay the specified compensation with additional interest in the amount of not less than one three hundredth of the Bank of Russia refinancing rate in force at that time 1 on the amounts not paid on time. Interest is accrued for each day of delay, starting from the next day after the due date for payment until the day of actual settlement, inclusive.

Amount paid to the employee monetary compensation may be increased by a collective or labor agreement. The obligation to pay interest in the event of a delay in settlement with the employee arises regardless of whether the employer is at fault.

In addition, Article 237 of the Labor Code of the Russian Federation provides for compensation for moral damage caused to an employee through the fault of the employer (illegal actions or inaction). In paragraph 63 of the resolution of the Plenum Supreme Court RF dated March 17, 2004 N 2 “On the application by courts Russian Federation Labor Code of the Russian Federation" clarified that the Labor Code of the Russian Federation does not contain any restrictions for compensation for moral damage in case of violation by the employer property rights employee. Therefore, an employee with whom payments are not made in a timely manner has the right to compensation for moral damages according to the rules of Art. 237 Labor Code of the Russian Federation. Moral damage is compensated in cash in amounts determined by agreement of the parties to the employment contract. In the event of a dispute, the fact of causing moral damage to the employee and the amount of compensation for it are determined by the court, regardless of the property damage subject to compensation.

2. Administrative responsibility

Administrative liability for violation of labor legislation (including the requirements of Articles 127 and 140 of the Labor Code of the Russian Federation) is established by Art. 5.27 of the RF Code on administrative offenses(hereinafter referred to as the Code of Administrative Offenses of the Russian Federation).

According to part one of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, violation of labor legislation entails the imposition of an administrative fine:

For officials - in the amount of 1000 to 5000 rubles;

For persons carrying out entrepreneurial activity without forming a legal entity - from 1000 to 5000 rubles. or administrative suspension of activities for up to 90 days;

On legal entities- from 30,000 to 50,000 rub. or administrative suspension of activities for up to 90 days.

If the violation was committed by a person who was previously subject to administrative punishment for a similar offense, this entails disqualification for a period of 1 to 3 years.

Offenders are brought to administrative responsibility if their actions do not contain signs of a crime.

3. Criminal liability

Criminal liability for non-payment of wages, pensions, scholarships, benefits, compensation and other payments is provided for in Art. 145.1 of the Criminal Code of the Russian Federation (hereinafter - the Criminal Code of the Russian Federation).

Failure to pay more than two months of wages, pensions, scholarships, compensation, allowances and other payments established by law (including compensation for unused leave upon dismissal), committed by the head of the organization, the employer - an individual out of selfish or other personal interest, is punishable by:

A fine of up to 120,000 rubles. or in the amount of wages or other income of the convicted person for a period of up to one year;

Or deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years;

Or imprisonment for up to two years (part 1 of article 145.1 of the Criminal Code of the Russian Federation).

The same act, but resulting in grave consequences, is punishable:

Or a fine in the amount of 100,000 to 500,000 rubles. or in the amount of wages or other income of the convicted person for a period of one to three years;

Or imprisonment for a term of three to seven years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Tarasova Tatyana

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Zolotykh Maxim

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service. For getting detailed information about the service, please contact your service manager.

1 From June 1, 2010, the refinancing rate of the Bank of Russia was set at 7.75 percent per annum (directive of the Central Bank of May 31, 2010 N 2450-U).