When an employee is dismissed (regardless of the reason for dismissal), the employer is obliged to make a final settlement with this employee, that is, he must pay all the amounts due to the employee (lost wages, ...).
Calculation after dismissal: terms
Labor legislation establishes clear deadlines for the calculation of dismissal. So, the payment of all amounts is made on the day of dismissal (Article 140 of the Labor Code of the Russian Federation).
Recall that, as a general rule, the day of dismissal is considered the last day of work of the employee.
Calculation upon dismissal: payment terms if the employee was absent on the last day of work
If the employee, for example, was on vacation or was sick, that is, was absent on the last day of work, and the salary in the organization is paid in cash, then the employer must make the calculation upon dismissal no later than the day following the day the employee applied for the calculation (Article 140 Tax Code of the Russian Federation).
Calculation of an employee upon dismissal: the terms of payment are violated by the employer
An employer who has violated the calculation period upon dismissal of an employee must pay the latter compensation for delayed payments in the amount of at least 1/150 of the key rate of the Central Bank in force during the period of delay (Article 236 of the Labor Code of the Russian Federation). Compensation is calculated for each day of delay starting from the day following the day on which the employer was supposed to pay upon dismissal, up to and including the day of actual settlement.
What else threatens the employer if he did not pay on the day of dismissal
If the employer has violated the deadline for issuing the calculation upon dismissal, and the employee complains about it to the labor inspectorate, then the employer faces a fine in the amount (part 6 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).
Article 140 of the Labor Code of the Russian Federation establishes a settlement period upon dismissal of an employee. The employer must issue a full settlement to the employee for all payments due to him on the day of his dismissal. Accordingly, if the employee was at the workplace on the day of dismissal, this day is considered his last working day. Thus, it is implied that the employer cannot, at his own discretion, transfer the time of settlement with the employee to another date.
Payout upon dismissal
The legislator does not establish special deadlines for carrying out settlements upon dismissal with an employee, depending on the reason and wording of his dismissal. He is fully accounted for. These payments include:
- compensation for all holidays that this employee did not use for the entire time of work at this enterprise (including main and additional);
- employee salary for hours worked;
- in the case provided by law, the employee may be paid severance pay, as well as other types of compensation payments provided by law for certain categories of employees, or by decision of the owner.
All payments must be correctly calculated and issued to the employee on the day of his dismissal, along with the work book. If the company does not accept a form of cash payment, and all types of payments are made to a bank card or bank account of an employee, all transfers must be made to the employee on the day of his dismissal from the enterprise.
If an employee leaves the company while on sick leave or on vacation, or is absent from the workplace for a good reason on the day of his dismissal, the employer can make all payments due to him no later than the next day from the moment the employee declares this. This situation is possible when the dismissal occurs at the request of the employee. After all, it is known that it is impossible to dismiss an employee at the initiative of the enterprise when he is on vacation, or during his illness.
But again, in the case when the employee wished to quit, and the date of his dismissal coincides with his stay on sick leave, despite this, the employer must issue an order to dismiss this employee. The same number makes an entry in the work book about the dismissal of an employee. If the employee is on sick leave, then, accordingly, he cannot pick up his work book. At the written request of the employer, it is allowed to give permission to the enterprise, send the work book to the employee by mail. Or, the employee can pick it up when he recovers, and can personally come to the enterprise.
But to send a notification to an employee who is sick that an order has been issued to dismiss him, about the need to take away his labor, and receive settlement, the enterprise is obliged. This is important, because it is the employer who is responsible for the late issuance of settlement funds and a work book. Moreover, for a delay in making settlements with a retiring employee, an enterprise or entrepreneur will have to pay in favor of the employee a kind of interest, which, by its legal nature, is a penalty for a delay in making payments.
If the terms of payment of the calculation upon dismissal are violated
Violation of the deadlines for issuing a calculation to an employee on the day of dismissal is a fairly common occurrence. However, this is not always a violation of the law. The Labor Service, in its clarification, urges employers, regardless of the reason for the dismissal of employees, to make timely settlements with them. Even if the employee is dismissed for absenteeism, or other guilty actions that led to the dismissal of the employee. And adhere to the norms prescribed in the Labor Code.
For violation of labor legislation, the employer bears double responsibility - administrative and financial to the employee. So, the employer bears the responsibility provided for in the laws, if there is guilt on his part for late payments. For example, an employee leaves, but wants to use his leave before leaving. The day of dismissal should be indicated in the order, and on the labor day, not the last day of actual work, but, according to practitioners, the last day of vacation. But, all settlements with the employee must occur before his dismissal, that is, before the vacation.
Another common mistake of the employer is to believe that an employee who leaves the enterprise for his guilty actions, at the initiative of the employer, is not entitled to any payments, or they can be detained at will. Do not forget that even in the event of the dismissal of an employee who violated labor discipline, there are statutory payments that the employee must receive. And the settlements with the employee must be carried out in a timely manner. If such an employee goes to court, all responsibility will fall on the shoulders of the enterprise.
When an enterprise is liquidated and an employee is dismissed at the initiative of the employer, all settlements with him must be made on the day of his dismissal, and not on the day the enterprise is liquidated. If an enterprise is liquidated under the bankruptcy procedure, then one of the first to receive payments is just employees with whom the enterprise has not made final settlements of wages and other mandatory payments. These calculations are:
- compensation (for vacation that was not used, for material or moral damage, for injury at the workplace, and other harm to health caused through the fault of the enterprise);
- wage;
- severance pay.
These termination benefits are mandatory and there are no legal grounds for not paying them.
Employer's responsibility
In addition to the interest provided for by the Labor Code, which the employer must pay for late payment of wages, in case of delay in settlement with the employee, the employer bears administrative responsibility. Such responsibility is established by administrative norms of the legislation.
In particular, in case of violation of the norms of labor legislation, the employer is subject to administrative liability in the amount of 5 to 50 minimum wages established by the Government for the billing period. The law establishes such an amount of liability for guilty officials who did not make timely settlements with the employee. The enterprise can be fined in the amount of 300 minimum wages.
Labor relations between an organization and a specialist may be terminated at the initiative of either party. Breaking the contract means additional responsibilities for the employer and employee. The first one must make a calculation after dismissal, the terms of which are strictly regulated by the Labor Code of the Russian Federation, make an entry in the work book, prepare and issue personnel documentation. The second one should complete the cases started earlier, fill in the bypass, get the papers required by law.
Violation of the terms of payment of the funds due to the specialist is fraught for the organization or individual entrepreneur with problems with the labor inspectorate and the calculation of monetary penalties.
The timing of the issuance of funds due to the employee is regulated by Art. 140 of the Labor Code of the Russian Federation. Legislative "deadlines" do not depend on the reason for dismissal and the party on whose initiative the relationship is broken.
The employee is entitled to receive the following transfers:
- wages for the period worked;
- compensation for non-vacation leave;
- allowances (provided for certain categories of persons, for example, leaving the company on a reduction).
The timing of payment of settlements upon dismissal is the last exit to work for a specialist when he receives a work book with a record. The law does not restrict the employer in choosing the method of issuing funds. He can give them in cash if the company has a cash desk, or transfer them to a specialist’s bank card by bank transfer. The main thing is to meet the “deadline” established by the Labor Code of the Russian Federation.
When are payments due?
The terms of payment of the employee’s calculation upon dismissal are shifted if:
- the person did not actually work, his position was simply retained;
- was on sick leave at the time of termination of the contract;
- went on vacation;
- absent from duty for any other valid reason.
The listed situations are possible if the specialist leaves the organization on his own initiative. Dismissal at the request of the employer is not allowed for employees who are on vacation or on sick leave.
Calculation on the day of dismissal is not possible due to the physical absence of a specialist. Art. 140 of the Labor Code of the Russian Federation obliges the employer to pay the person the money due no later than the next date after receiving the request from him. The law does not specify how a citizen needs to formulate his desire: orally or in writing.
In these situations, on the day of dismissal, the employer does not lose the obligation to issue an order to terminate the relationship with the employee, to make an entry in the work book. A notice is sent to the absent specialist by registered mail about the need to appear for documents.
The timing of the calculation upon dismissal is the responsibility of the employer. If he does not send a notification to the specialist, he will have nothing to answer the claims of the labor inspectorate, where the employee can apply. In the absence of evidence, there is a risk of paying, in addition to the calculated ones, compensation for their delay.
Common mistakes employers make
Practice shows that many employers tend to misinterpret the provisions of the Labor Code of the Russian Federation, which leads to conflict situations with personnel.
If an employee goes on vacation with subsequent dismissal, the order to terminate the employment relationship is issued on the last working date, i.e. on the end of the paid holiday.
The deadline for issuing a calculation upon dismissal is the last day of the actual presence of a specialist in the company. The funds due, including vacation pay, are issued before going on vacation.
Some employers mistakenly believe that a person dismissed under a guilty article may not be paid money on time. Such an attempt to "revenge" is a violation of the current legislation, which does not differentiate the terms for issuing funds depending on the reasons for the parties' forgiveness. If subsequently a person turns to the labor inspectorate or to the court, the employer will answer with a ruble for illegal actions.
With the liquidation of a commercial structure, the staff is reduced. The settlement period upon dismissal of an employee is the date of his separation from the company, and not the termination of the existence of a legal entity. In case of bankruptcy, employees are recognized as the recipients of the first priority funds. A severance pay in the amount of a two-month salary is added to the salary, compensation for unused vacation.
Responsibility of the company-employer for non-compliance with deadlines
For each day of delay in the transfer of settlements, the company is obliged to pay the employee interest-compensation. Their size is calculated as the amount of outstanding debt multiplied by three hundredth of the key rate.
Compensation is determined by representatives of the labor inspectorate. Their duty is to determine the interest and control the transfer. If the employer refuses to fulfill obligations, the employee has the right to apply to the court for recovery.
If the calculation period upon dismissal of one's own free will or for another reason is violated, the company is held administratively liable. Guilty officials are fined in the amount of 5-50 minimum wages. A legal entity will be obliged to pay to the treasury an amount of up to 300 minimum wages.
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The timing of the settlement with an employee leaving the organization is devoted to article 140 of the Labor Code of the Russian Federation.
Article 140 of the Labor Code of the Russian Federation. Deadlines for dismissal
Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.
In the event of a dispute about the amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article.
What is the exact date - the deadline for issuing settlement?
As a general rule, the day of dismissal should be considered the date when the person was present at the workplace for the last time. But in practice it also happens that the last working day and the day of dismissal do not coincide.
Here are examples of date mismatches:
When and how should the money be paid?
Let's consider when the final should be made depending on the situation, but at the same time taking into account the requirements of the current legislation.
When should they give if the employee was absent on the last working day?
This situation is also discussed in Art. 140 of the Labor Code of the Russian Federation. It is indicated that the employer is given a day to carry out the calculation, but from the moment when the dismissed employee demands the payment of funds. It turns out that the employee himself, after dismissal, must turn to his already former leader and demand to make a settlement with him.
Read about what payments are due to an employee upon dismissal, and from you will find out whether it is possible to hope for a bonus payment after dismissal.
How to apply for a settlement?
The legislation does not deal with this issue. It appears that It is best to submit a written application with the following content:
“I, Petrov Ivan Vasilievich, was fired from LLC Magnat at my own request on April 18, 2018. On the day of my dismissal, I was absent from the workplace due to a day off, I ask you to make a full payment with me within the time limits established by labor legislation.
Be sure to put the date of writing the application and signature.
If desired or necessary, the application can be submitted not in person, but by mail or through a representative.
However, the former employee of the organization is interested in the issue of obtaining funds. Therefore, it is better to contact the office of the company yourself. Most likely, the money will be issued immediately.
What if an employee wants to quit while going on vacation?
The situation is more difficult to interpret if the employee goes on vacation with subsequent dismissal. On what day is the employee paid the calculation in this case?
Art. 140 of the Labor Code of the Russian Federation, as noted, says that the calculation must be made on the day of dismissal or, if the employee is not at his place on that day, no later than the day following the date of the dismissed person's application for the due payments.
Thus, the following logical conclusions can be made:
- If the employee is on vacation, then the place of work for him must be saved.
- Accordingly, the calculation must be carried out after the vacation ends.
These conclusions are erroneous. In fact, vacation time is not taken into account. This follows from Art. Art. 84.1 and 127 of the Labor Code of the Russian Federation. Thus, the employee is entitled to receive all payments due on the last working day. Or the next day after he turned to the employer for the calculation, if the employee for one reason or another was not present at the workplace on the date of dismissal.
Responsibility of the employer for the delay in transfer
If the employer does not pay the money within the time limits specified in this article, then an employee can apply:
According to Art. 236 of the Labor Code of the Russian Federation, interest is charged for late payments, in the amount of 1/150 of the key rate of the Central Bank of the Russian Federation, on the amount of debt and for each day of delay in payments. The entire amount should go into the employee's pocket. But there is also a responsibility to the state. In particular, the Code of Administrative Offenses of the Russian Federation contains
29.08.2018, 2:29
With each dismissed employee, the employer must make a full financial settlement. This norm is enshrined in the Labor Code. This regulatory legal act also spells out the deadlines for transferring the last salary and issuing a work book. How long does it take for termination payouts to be paid? The answer is given in article 140 of the Labor Code of the Russian Federation. Read more about the current procedure in the material.
How to determine the payment date
The employer is obliged to ensure that the dismissed official receives the calculation on the last working day (Article 140 of the Labor Code of the Russian Federation). The calculation amount includes the basic salary and the full list of allowances and additional payments. What is the time frame for the calculation of dismissal in relation to compensation accruals?
They are issued to the employee simultaneously with other types of income (we are talking about social benefits, severance pay, compensation for unused days of paid rest, etc.).
The last payment of an employee's income can be made by the employer in one of two ways:
- issuance of money from the cash desk according to payroll against signature;
- crediting funds to the current bank account of an individual.
If on the appointed day of dismissal the employee is absent from the workplace for good reasons, and the employer cannot make a cashless payment, the term for payment upon dismissal is shifted.
The waiting period for payment will depend on the will of the individual who terminated the contract. Prolongation is possible according to the norms of Article 140 of the Labor Code of the Russian Federation, namely: until the day following the date when the former employee applied for the calculation.
Legal consequences of the delay
If the employer could not meet the deadlines for paying off monetary obligations to the dismissed employee, he must accrue and pay compensation to the former employee.
The total amount of compensation depends on how many days the terms of payment were delayed upon dismissal of one's own free will. The algorithm for calculating compensation is given in Art. 236 of the Labor Code of the Russian Federation:
- the minimum amount of the compensation payment corresponds to 1/150 of the key rate according to the Central Bank of the Russian Federation on the date of the fixed delay;
- compensation must be accrued for each day of delay;
- the countdown of overdue days starts from the day following the dismissal;
- payment is also due on the date on which the final settlement was actually made.
It is also necessary to remember that a dismissed employee, in case of delay in payments, has the right to file a complaint against the employer with the labor inspectorate. In this case, employers and its officials may be issued fines specified in Part 6 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.
