Calculation of payment for forced absenteeism in case of illegal dismissal
What is forced walking? There is no definition for such a term in the Labor Code of the Russian Federation. In practice, the question of whether absenteeism was committed through no fault of the employee is decided by the court or the labor inspectorate. As a rule, such work absence is associated with a violation of the Labor Code of the Russian Federation by the employer (as indicated in the Decree of the Plenum of the Armed Forces of the Russian Federation “On the application by the courts of the Labor Code of the Russian Federation” dated March 17, 2004 No. 2). If an employee cannot work due to the fault of the employer, then such a pass is considered forced.
These signs include the following:
dismissal of an employee without good reason;
dismissal of an employee from office without explanation without reason
Art. 391 of the Labor Code of the Russian Federation states that an employee whose rights have been violated may apply to the court for restoration of justice. The term of application is no more than three months from the date of violation. If, by a court decision, it is established that the absence of work was due to the fault of the employer, the dismissed employee has every right to demand reinstatement in the workplace, as well as to recover wages and compensation for moral damage from the employer.
How are employees calculated and paid?
If it turns out that the truth is on the side of the employee, the court will decide to cancel the dismissal order and oblige the employer to make all necessary payments in favor of the citizen and reinstate him at work. According to Art. 234 of the Labor Code of the Russian Federation, payment forced absenteeism at illegal dismissal is made on the basis of the average earnings of the employee for the twelve calendar months preceding the absence of work. The procedure for calculating the average salary is specified in Art. 139 of the Labor Code of the Russian Federation. The money is paid for the entire period of absence from the workplace. Payment for forced absenteeism due to the fault of the employer after a court decision must be made as soon as possible.
According to Art. 237 of the Labor Code of the Russian Federation, an employee may demand compensation for non-pecuniary damage from the employer. If he does not mind, the payment is made by agreement of the parties. In case of refusal, the employee can apply to the court with a corresponding claim.
Is it included in the experience during this period?
After the employee is reinstated at work, the time of forced absenteeism is included in seniority as if he were working normally. In the future, this time will be taken into account when:
calculation of the main vacation;
calculation of bonuses related to seniority;
for other calculations.
Violation by the employer of the Labor Code of the Russian Federation upon dismissal of an employee may lead to his forced absence from the workplace. The result will be litigation and financial trouble.
Everyone knows the term "truancy". It is interpreted as skipping classes (work) without a good reason. Now it is worth defining the concept of "forced absenteeism" considered in this article. This is a missed work due to the employer (through his fault). For example, in a situation of unlawful dismissal of an employee. The time period until his reinstatement in his previous position by a court decision is the time of forced absenteeism.
Payment for this work pass
In the example above, it is worth emphasizing that the employee has the right to file a lawsuit. At a positive result(i.e., he will be satisfied by the court), the employer is obliged to reinstate this employee in his previous position. In accordance with our labor legislation, he must also pay forced absenteeism (for all the time) in the amount of the average amount of earnings that an employee could receive during the same period while performing his previous job duties.
An important point is the use of official average earnings in the calculation. That is, in other words, in a situation where an employee receives a salary “in an envelope”, to determine the amount that is intended for forced absenteeism, only the “white” salary with all official bonuses and financial incentives will be taken into account.
In this situation, not only compensation for the time of forced absenteeism is due, but also compensation for non-pecuniary damage. That is, the employee has the right to demand compensation for moral damage caused by wrongful dismissal.
Calculation of the time period of the absenteeism in question
The day of dismissal is the last working shift. Forced absenteeism (Labor Code of the Russian Federation) is calculated starting from next day upon receipt of an appropriate dismissal order. In the case when an employee quits without going to work after vacation, the day of dismissal is the last vacation day.
It is worth clarifying that forced absenteeism is not always the result of illegal dismissal. For example, if the employer did not issue a work book to the employee upon dismissal (as he should have done by law). For this reason, the employee was unable to submit the next day to new organization this document(which must be handed over to the personnel department when applying for a job). In this regard, the employee suffers losses that arose through the fault of the former employer, as a result of which he is entitled to compensation for forced absenteeism.
This is not the only situation when the employer must compensate financially for the lost opportunity of the employee due to his incorrect actions. So, the recovery of compensation for forced absenteeism occurs if the employer incorrectly indicated the reason for the dismissal of the employee in work book, as a result of which the latter was not accepted to a new job. This, of course, is possible, provided that the employee proves the fact of refusal to accept new job It was the fault of the former employer.
Forced absenteeism: judicial practice
Cases related to the wrongful dismissal of employees can be said to be quite popular today. This may also include incorrect design dismissal by employers for absenteeism, and the illegal dismissal of pregnant women, threats against employees in order to sign a letter of resignation precisely for own will to avoid paying due legal compensation to those workers. Therefore, forced absenteeism due to the fault of the employer is also paid quite often (when a court decides in favor of the wrongfully dismissed employee - the plaintiff). 
Unfortunately, not all dismissed employees have knowledge on this issue, and therefore cannot protect their rights to reinstatement in their previous position and compensation for forced absenteeism.
In this regard, the injured employee should immediately contact an appropriately qualified lawyer.
Forced absenteeism due to the fault of the employee
In fact, absenteeism is the absence of an employee at his workplace without good reason for more than 4 hours in a row. It is worth noting that if there is no clarification regarding the workplace in a certain employment contract, then it is impossible to consider a situation when an employee is not at his usual workplace, but on the company’s territory, as absenteeism.
Punishment for missing work - measures disciplinary action: reprimand, dismissal or remark. The right to choose the appropriate measure provided for by Russian labor legislation, other federal laws available directly from the employer. He can also refuse any punishment at all. The concept of "forced absenteeism that occurred through the fault of the employee" can be interpreted as skipping work for a good reason. 
Dismissal under the relevant article for absenteeism according to the law must be preceded by an explanation of the employee, drawn up in writing. In the event that the employer considers the reasons given by the employee for absence from the workplace as disrespectful, he may order the dismissal. The employee may not agree with this decision, then he should apply to the appropriate court, which will consider the question of the validity of the specified reasons (whether it is considered absenteeism or not). However, there is a catch - there is no clear list of such good reasons. But several groups can still be distinguished.
Valid reasons: subjective, objective
The first are closely related to the individuality of the employee himself. This includes, firstly, the state of health. In this case, the evidence of a justified absence from your workplace may be the following:
- doctor's record of admission in the card (outpatient);
- a certificate from the attending physician that the employee was at the reception;
- sick leave.
Secondly, periodic medical examinations for certain categories of employees. Thirdly, the state of health of the child (the evidence is the same). Fourth, an employee cannot be fired for absenteeism if he takes part in court session as plaintiff, witness, juror. Confirmation - court summons. This can also include a call to the police, the activities of a member of the commission (election). Fifthly, the elimination of any communal accident in your housing (except for scheduled inspections of housing and communal services).
The objective reasons why an employee cannot appear at work are circumstances caused by various kinds of force majeure. This:
- weather;
- technogenic accidents, catastrophes;
- emergency traffic situations;
- hostilities.
If the employer does not agree with these reasons, and it comes to dismissal, then when the employee goes to court, according to statistics, the decision will be made in his favor (reinstatement at the previous place of work). The main thing is not to delay this, since an application for reinstatement in a previous job is submitted to the court within a month.
Reasons for the application, equated to valid
There are circumstances, the occurrence of which does not allow the employee to appear at his workplace. The employer must be warned about them in advance, which is why the employee is obliged to write a request for a day off. According to our labor legislation, in response to it, the employer is obliged to provide several unpaid days (breaks):
- up to 5 - in situations such as the death of a loved one, a wedding, the birth of a child;
- up to 4 - to an employee - a parent of a disabled child;
- 1 per month - for an employee engaged in labor activities in rural areas;
- breaks - for working employees with children under 1.5 years old who are breastfed (artificially) fed.
Recovery of wages for the considered type of work absence
As the saying goes Labor Code, forced absenteeism is a certain period of time during which the employee could not carry out his labor activity solely the fault of the employer. The reasons are listed there as well:
The consequence of the above reasons is a penalty for forced absenteeism in cash in the form of average earnings for the entire period in judicial order. To do this, it is necessary within three months from the date of receipt of information regarding the violation of the right to apply to the appropriate court. IN controversial situations regarding dismissal, the deadline for filing an application is reduced to a month (starting from the moment the relevant order is delivered and the labor document is issued).
Labor Code: List of Individual Disputes Based on Employee Applications
To be precise, article 391 is devoted to this. Such disputes are considered in the courts of general jurisdiction. Our codified labor statute provides the following list of disputes regarding claims by various employees regarding:
- Their reinstatement at their previous job, regardless of the grounds for termination of the existing employment contract.
- Changes in the date (wording) of the specific reason for dismissal.
- Transfer to another kind of work.
- Payment for the period of time that the forced absenteeism took (the definition of this concept was presented earlier).
- Payment of the difference in salary for the time spent on the performance of work below paid.
- Illegal actions (inaction) of the employer in the process of processing, protecting personal data of employees.
- Other individual disputes regarding the labor sphere.
Calculation of average earnings from the point of view of the legal aspect
As mentioned earlier, the employee is entitled to compensation for forced absenteeism. The average amount of earnings required to determine the payment for the period of time spent on a given absence from work is set on the basis of the Russian codified labor legislation and the existing Regulation on the specifics of the procedure for calculating this indicator, which is approved by our Government.
Its calculation - regardless of the operating mode - is carried out on the basis of the actual salary of the employee and the time actually worked by him for the year preceding the moment of payment. The corresponding collective agreement may also specify other periods that serve as the basis for calculating the average salary (of course, provided that this does not worsen the already existing situation of employees).
The amount of payment, the period must be displayed in the court decision, writ of execution. This amount may be reduced by the appropriate amount of the due severance pay, which was paid to the employee upon dismissal.
It is worth noting that payments for forced absenteeism (Labor Code of the Russian Federation) are made at the same time as the issuance of an order regarding the cancellation of dismissal. Supreme Court pointed out that the essence of the reinstatement in the previous job is the abolition of the legal consequences of the dismissal procedure by precisely refusing the relevant order, and not by issuing another (on reinstatement) after this decision is made by the court.
Thus, the obligation of the employer to pay wages for all forced absenteeism occurs at the time of the cancellation of the dismissal order and the restoration of the employee to his previous position. Such payment is an integral part of the process of reinstatement at the same place of work.
It is also worth noting that the employer does not have the right to independently reduce the amount that was appointed by the court. And the salary received by an illegally dismissed employee in another company (Employment Center in the form of temporary disability benefits) does not reduce the amount of payment for forced absenteeism, as a result of which the employer also does not have the right to reduce the salary for this work absence by the above amount.
Labor Code: moral harm caused to an employee by illegal actions (inaction) of the employer
This codified legislative act on labor, along with the above-mentioned liability of the employer regarding compensation for material damage, also establishes his liability related to compensation for moral damage to the employee.
According to Article 237, it is compensated in material form in such amounts as are determined by agreement of the parties to the employment contract. If a dispute arises regarding this issue, then the case goes to court, regardless of the property damage prescribed for compensation.
The essence of non-pecuniary damage is represented by the suffering that an employee experiences as a result of a violation of his certain rights. In order to ensure the correct uniform application of the existing legislation, which regulates the issues of compensation for moral damage, as well as the most complete operational protection of the interests of those who became victims in the process of consideration by the courts of cases of this category, the Presidium of the Supreme Court of the Russian Federation in the relevant Decree gave a number of clarifications.
Over the past few years, judicial practice has shown a steady trend aimed at increasing the number of claims for moral damages that employees make in the process labor disputes. However, in our country, to this day, there are some obstacles on the way to the formation of a unified judicial practice the category of cases under consideration.
The very concept of “moral harm” is absent in Russian labor legislation. But taking into account the fact that his compensation in the field of labor relations is part of the general competence of compensation for moral damage, one should be guided by Article 151 of the Civil Code of the Russian Federation, according to which this concept is the physical (moral) suffering of a certain citizen, which was the result of actions, violating his personal rights (non-property) and encroaching on other non-material benefits belonging to him.
Then, for the considered labor relations non-pecuniary damage - physical (moral) suffering of an employee that is associated with illegal actions (inaction) of the employer. This must be supported by certain evidence provided by the employee. It could be:
- disease;
- impossibility of employment;
- delay in the payment of wages, resulting in a difficult financial situation for the employee;
- moral suffering due to the loss of a job and the inability to find a replacement for it;
- obtaining unemployed status due to a delay in issuing a work book, etc.
In accordance with the general rules, the obligation to compensate for non-pecuniary damage is assigned to the employer, provided that it is his fault. There are exceptions that are stipulated by law (within the framework of our Civil Code) and are presented in the form of a number of cases when the payment of appropriate compensation is made regardless of the degree of guilt of the harming subject, which often includes damage to the life, health of a citizen through
In our codified labor legislation, only a couple of cases are clearly spelled out in which an employee has the right to claim compensation for moral damages, namely:
- As part of discrimination in the labor sphere.
- Upon dismissal without a legal basis (in violation of a certain procedure for the dismissal process, unlawful transfer to another job).
The relevant Ruling of the Russian Supreme Court satisfied such claims as recognition of the illegality of the dismissal order (reinstatement to the previous job), the recovery of wages for forced absenteeism, and the payment of compensation for moral damage. This is permissible due to the fact that the termination of a previously concluded employment contract cannot act as a measure of specific legal responsibility and cannot be allowed without the payment of appropriate compensation in the amount established by the employment contract, and in disputable situations - by a court decision.
But the Supreme Court in the relevant Resolution clarified next moment: in view of the fact that our codified labor legislation does not contain restrictions on the issue of compensation for moral damage and in other cases of violation of the rights of employees in the labor field, the court has the right to satisfy a number of their claims regarding compensation for damage caused by any kind of illegal actions (inaction) employer, including violation of their property rights (for example, delayed payment of wages).
Thus, if we summarize all of the above, we get the following: forced absenteeism is the absence of work by employees due to the fault of their employers, for which, by appropriate court decision, they can receive compensation for lost opportunities and for moral damage.
The Labor Code of the Russian Federation does not give a clear definition of forced absenteeism.
According to the general current norms and established practice, such a period is recognized as a temporary break in the implementation of professional activities, which occurred through no fault of the employee.
Of course, the reason for this can be circumstances, the occurrence of which did not depend on the parties to the agreement - military operations, natural disasters, mass diseases, industrial accidents.
But sometimes a break in a person’s professional activity may arise due to the unfair attitude of the head to the fulfillment of the obligations assigned to him by the current regulations.
As it was indicated, a clear concept of what forced absenteeism is is not contained in the Labor Code of the Russian Federation.
According to established practice, the essence of such a concept is that a person had real opportunity fulfill their official duties, but was limited in this due to the bad faith of the head of the company. Examples of such actions of the chief are:
- dismissal from a position or transfer to another position in cases where the employer did not have such a right;
- unreasonable denial of admission to the staff of the organization;
- signing a working agreement in violation deadlines conclusions;
- untimely fulfillment of the requirements of a judicial or other authorized instance on the reinstatement of a worker in a position;
- incorrect, for example, incorrect wording in the relevant order of the head, if this caused the impossibility of employment in a new place;
- delay in issuing a personal work book of an employee;
- non-payment of the due sums of money.
These reasons create some obstacles for a person. They arise through no fault of the employee, therefore they are considered a forced break.
Illegal suspension or dismissal
Suspension, as well as dismissal, is mainly possible in cases where the worker violated his official duties, that is, partially did not fulfill or completely withdrew from the performance of those.
Such cases include:
- absence from one's place for more than four hours in a row or all day long;
- the use of alcohol or illegal drugs or the presence on the territory of the organization under the influence of these substances;
- violation of internal security rules;
- communication of restricted access information to unauthorized persons;
- , damage or loss of entrusted material assets of the company.
There are other reasons why a person may be suspended from work or fired altogether.
Regardless of the circumstances, it is necessary to check and document the fact of the violation in order to have evidence in hand.
If this is not done, then any break in professional activity will be considered forced.
Late execution of the decision on reinstatement at work
According to the rules of the Labor Code of the Russian Federation, a forced absenteeism can be a situation when the head did not comply with the requirements of a court opinion or a decision of another authorized instance to reinstate the worker in his position.
According to the current general rules, an employee can be reinstated in his original place by a court decision.
It is not uncommon for people to be fired from their jobs without having to do so. The worker can also leave if he disagrees with some of the actions of the manager, for example, in the case of an illegal transfer. In such circumstances, people most often apply to the court or other authorized body for reinstatement.
After a formal hearing, the competent authority always issues its opinion. If the issue is resolved in favor of the worker, the decision is not only given to the person, but also sent to the organization where he worked.
In conclusion, the time period during which the requirements of the person must be fulfilled is always indicated.
If the manager does not execute the decision on time, then forced absenteeism automatically occurs. It should be noted that a delay of this kind is also recognized as non-execution of a court decision. In this case, criminal measures may be applied to the head.
Delay in the issuance of a work book
Forced absenteeism through the fault of the employer also occurs in case of violation of the terms of extradition to a person.
According to current standards, upon dismissal, on the last day of labor, without fail, a person must be issued a work book with the entry in it.
If for some reason a person is absent on the day of dismissal, the head is obliged to send him a notification about the need to appear to receive the specified document.
After sending the notice, it is considered that the head has fulfilled his obligation. The timeliness of the issuance of such a document is due to the fact that without it it will be extremely difficult to get a new job, since the submission of a work book is prerequisite upon employment.
Quite often, even before leaving, a person is looking for a new job and immediately after being fired, he can get a job again. If he does not have a book in his hands, then he may lose this opportunity. Accordingly, his activities will be interrupted due to the manager's dishonesty and a period of forced break will occur.
Compensation for forced absence
According to the requirements of the Labor Code Russian Federation, in case of violation general rules the person must be paid for forced absenteeism. It should be noted that this will only be possible if the break was recognized as forced.
Such funds are paid in the following order:
- for the time of forced absenteeism will be accrued due to the reinstatement of a person in a position;
- in case of untimely execution of the court decision, forced absenteeism is also paid;
- for forced absenteeism, payment will also be made if the person did not seek to be reinstated, but only to change the wording of the reason for dismissal in the order for leaving on personal intention.
It should be noted that payment for forced absenteeism will be possible not only as a result of a court decision. Sometimes the leader eliminates the violations on his own.
Cash in this case is the salary that a person could earn by carrying out his professional activity.
The following will be taken into account:
- salary set for the position held;
- allowances of a different nature, for example, for harmful factors in labor;
The amount in this case is calculated based on the duration of the forced break. The calculation is made in actual working days, according to the work schedule of a person.
The specified time period will not be calculated from the date the relevant decision is made, but from the moment the actual start of absenteeism, for example, from the day the worker is dismissed.
Compensation for non-pecuniary damage
In addition to payments of earned funds, for forced absenteeism, a person may be awarded compensation for moral damage caused.
Compensation of this kind can be received by a person, regardless of the reasons for the forced absenteeism.
It is believed that moral suffering can be caused to a person due to the inability to find a new place of work. The manager himself can eliminate the committed violations. However, he is not able to compensate for the damage of this nature. This means that it will be impossible to reflect a phrase of this kind in the payment order, since the company's financial policy does not provide for an expense item for such needs. Nevertheless, damage can be compensated, for example, in the form of bonus payments.
As for the precise wording of this content, it is always included in the content of the judgment. That is, the request for such content can only be satisfied by the court.
The amount of this compensation and the procedure for its calculation are not established by the current regulations. The specific amount of compensation is determined by the person himself and indicates it in his appeal.
Each interested person should be aware that such a payment may be revised by the court, as a rule, downward. The thing is that in the course of the proceedings, the proportionality of the claimed amounts is always compared with the degree of suffering that was caused to the applicant.
Inclusion of forced absenteeism in the length of service
According to the general rules in force, the time of forced absenteeism is included in the total period of activity, which is necessary for the future, as well as obtaining additional guarantees and benefits for the duration of work.
This approach is quite logical. The thing is that during the forced break, a person could not only earn money, but actually do his job, but because of the leader’s dishonesty, he was deprived of such an opportunity.
Therefore, such a period is taken into account in the total duration. The reason for such a break in this case does not matter.
It should be noted that inclusion in absenteeism will be possible if he was recognized as forced by the conclusion of the court.
Otherwise, a person will lose such a time period. In the future, the forced break will also be taken into account when calculating vacation and additional payments to the main salary for the duration of work.
Arbitrage practice
In one of the courts of the Russian Federation, a person’s appeal was considered with a request to recover from the company cash for material and moral damage due to forced absenteeism.
In the course of studying the content of the appeal, it was found that the initiator was in the company and carried out his professional activities as a driver, on the basis of a signed employment agreement.
On one of Labor Days, a man discovered that his working vehicle unsuitable for operation. He informed his immediate superior about this. He, in turn, invited another specialist to temporarily replace, as a result of which the initiator did not perform his work on the indicated day. He agreed to the change. For this reason, the applicant expressed a request to recover in his favor from the company funds for the material and moral damage caused.
The representative of the company explained that on that day the initiator actually came to work, but refused to fulfill his duties, although all the equipment was serviceable. The worker explained his refusal by the fact that the vehicle is dirty, which makes it difficult to use it. The person did not provide written explanations.
In all institutions of the budgetary and non-budgetary spheres, agreements are concluded with employees employment contracts, which in turn regulate relations in the labor sphere and arise between the employer and the employee. The conclusion of the contract is made in writing, in two copies. Signed by subordinates and superiors.
Dear readers! The article talks about typical ways solving legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
It's fast and FOR FREE!
However, in many firms such documents are drawn up in the wrong order: either the terms and conditions of work are not indicated, or there is no agreement with the worker. This in the future can lead to such a phenomenon as forced absenteeism.
concept
In the documents of labor law, there is no clear definition of the term forced absenteeism. It is determined by the courts, having considered the request of the dismissed person, which lists the circumstances of the dismissal.
The court decides whether the fact of absenteeism was due to the fault of the head, or not.
In fact, forced absenteeism is a period of time when an employee was illegally suspended from his job due to the fault of the boss.
There are a number of reasons for this:
- between a worker and his boss in an illegal way;
- drawing up a contract that does not comply with the norms governing labor relations;
- illegal movement of a person between various positions in the enterprise that do not correspond to the qualifications of the employee;
- incorrect or inconsistent with the law record of dismissal.
After the employee has been acquainted with, he is issued. If this dismissal took place illegally, then the dismissed employee can apply to the prosecutor with a statement about the violation of his labor rights within a month.
How to determine the period?
The duration of absenteeism in different situations is determined individually.
The time for an illegally dismissed person to go to court is from 1 day to 3 months from the moment when his rights were violated when he was removed from office.
After the court has made its decision, the person must return to the previous position he occupied.
Documentation
When reinstating an employee, the employer must:
- issue an order for reinstatement at work indicating the date of reinstatement;
- make an appropriate entry in the work book, while noting that the previous entry is not valid.
After completing these documents, the accountant must calculate and pay for forced absenteeism.
Payroll and compensation calculation
The calculation is based on .
For this, wages are taken, actually accrued for 12 months, immediately before his removal.
It includes all payments under the legal regulations that govern the calculation of salaries in this company for the days actually worked, excluding amounts paid due to sickness and vacation pay.
Thus, the amount of compensation for forced absenteeism will be equal to the product of the average salary by the number of days of absenteeism that a person would work.
Consider an example:
Worker N.N. filed a lawsuit to return him to his previous workplace, to recover from the defendant compensation for the time of forced absenteeism and compensation for the harm caused to him. He claims that his labor rights violated, as it was.
N.N. worked in the organization as a stoker until 05/13/2016. and was dismissed on the basis of Art. 79 of the Labor Code in connection with. In fact, the director did not conclude an agreement with him, did not draw up in writing.
This stoker, starting to work, did not know that he was working temporarily. The secretary did not provide it for signing. Therefore, N.N. believes that he was fired with a gross violation of the rights of the Labor Code of the Russian Federation.
Thus, he was morally harmed, as he was left without income and livelihood. Because of such treatment by the administration of the enterprise, it will be difficult for him to get a job in the future. In addition, N.N. is in pre-retirement age, which greatly complicates the search for work.
The combination of these circumstances caused moral suffering, the need to find means of subsistence, the need to apply to the prosecutor's office for the restoration of their rights.
The court, in defense of the injured person, ruled to reinstate him to his previous job with payment of compensation for forced absenteeism in the amount of 7300.19 rubles. and non-pecuniary damage in the amount of 7,000 rubles, which was stipulated in the statement of claim by the victims N.N.
The director acknowledged the fact of illegal dismissal. The secretary wrote an order to restore N.N. June 20, 2019
The calculation of compensation was made by the accountant of the organization in which he worked, according to the following algorithm:
Calculation of the average daily wage N.N.
| Year | Months | days | Salary, rub. |
| 2015 | May | 29,3 | 6900 |
| June | 29,3 | 6900 | |
| July | 29,3 | 6900 | |
| August | 29,3 | 6900 | |
| September | 29,3 | 6900 | |
| October | vacation | — | |
| November | 29,3 | 6900 | |
| December | 29,3 | 6900 | |
| 2016 | January | 29,3 | 6900 |
| February | 29,3 | 6900 | |
| March | 29,3 | 6900 | |
| April | 29,3 | 6900 | |
| TOTAL | 322,3 | 75900 | |
| Average daily salary | 75900 / 322.30 \u003d 235.49 rubles. | ||
The number of days of absenteeism in our example was 31 (from 05/13/2016 to 06/20/2016)
Then the payment for forced absenteeism will be:
235.49 * 31 \u003d 7300.19 rubles.
In cases where the dismissal is paid, that is, the final settlement, then the compensation is reduced by this amount.
Tax calculation
Since the amount of compensation is included in the base for calculating the UST, the accountant must calculate and pay taxes accrued on wages.
As a result of this, in in due course all taxes will be charged:
- contributions to the FIU, in the amount of 22%;
- contributions to the FFOMS -5.1%;
- contributions to the FSS -2.9%;
- contributions to the FSS - 0.2%.
Income tax is withheld in the amount of 13% of the compensation amount, and transferred to tax authorities RF.
The concept of moral harm
Moral harm is moral suffering. They were caused to the employee as a result of violation of his rights at work, as well as non-property benefits that the employer delivered to him.
This compensation, as a rule, is collected through an appeal to the prosecutor. Further, the court makes a decision to recover from the defendant financial compensation for non-pecuniary damage, which is determined in a fixed equivalent.
When accruing such a payment by an accountant, taxes are not charged and personal income tax is not withheld.
Although the Labor Code protects the rights of employees in every possible way, regulating for them in many respects more loyal conditions than for the employer, it is still far from rare that an employee is dismissed illegally. In this case, he has every right to file a lawsuit in court in order to defend his rights and restore justice.
At the same time, by a court decision, the employee will be able not only to return to work, but also to receive wages for the time of forced absenteeism, which formally arises from him through the fault of the employer.
It is important to remember that the payment for forced absenteeism and other due payments must be declared in the requirements statement of claim. Otherwise, at its discretion, the court is unlikely to decide to recover the amount due to the dismissed during this time.
The legislation clearly provides for 2 cases when an employee has the right to demand wages from the employer after dismissal:
If he was fired illegally
Exists detailed list categories of workers who are not allowed, single mothers, parents of disabled people). You can even reduce them only in the last turn. It is also impossible to terminate an employment agreement with an employee who is on sick leave or on vacation at the time the order is issued.
If such a fact takes place, then the employee can really not only in his previous position, but also receive the due payments for the period of his absence from the workplace.
Documents not issued
According to the current legislation, the employer is obliged to issue to the employee:
- work book;
- a copy of the dismissal order;
- certificate 2 personal income tax.
A common mistake is that the payment for forced absenteeism does not include bonuses. Indeed, bonuses can be issued by an employee only at the discretion of the management of the enterprise. In the absence of an employee in the service, no incentives are provided for him. However, this takes into account the average wage, so if the employee consistently received bonuses, then his absence from work will not affect the amount of his income for this period.
Calculation of average earnings is made on the basis of a certificate of income, which must be issued to any employee upon dismissal. If such a form has not been issued, then it must be taken from the Tax Inspectorate.
The employee may also contact Labor Inspectorate. Refusal to issue a form 2 personal income tax certificate to the dismissed person, as well as any other documents, is a gross violation of the Labor Code of the Russian Federation. If the fact of such illegal actions of the employer is proved, then he will have to additionally pay a serious fine.
Indeed, very often additional requirements are made that the employer is also obliged to pay moral damages to the illegally dismissed employee. In fact, it is almost never possible to get anything for a given requirement. The only exceptions are rare cases when an employee suffered some kind of bodily harm and the fact of beating was documented.
In other cases, the victim, of course, has the right to claim not only the recovery of wages for a given period of time, but also compensation for the moral suffering caused. But all this is considered solely by the judge in his opinion.
Even if, for example, through the fault of the employer, the employee ended up in the hospital with a heart attack, it is practically impossible to formally prove a causal relationship and recover the costs of treatment.
For forced absenteeism, the recovery usually takes place in full, but the declared moral damage is usually significantly reduced at the discretion of the court. Practice shows that most often this requirement is completely denied.
The main reason is that the legislative acts nowhere stipulate clear amounts for satisfying these requirements. Since it is really impossible to objectively assess the amount of this harm due to the fault of the employer, then the court is not obliged to recover anything here. Even if this is done, the company can easily challenge such a decision.
This type of application is made general principle rules and requirements for any claim.
The claim must include the following list of mandatory items: 
- details of the plaintiff, as well as the court to which the claim is sent;
- essence of the question;
- stated requirements;
- attachments of documents that are relevant to the case;
- date of filing of the statement of claim and the signature of the plaintiff.
When drawing up a claim, it is important to pay attention to the presence of a set of mandatory rules that are fundamentally important for such legal documents:
- it is necessary to draw up a claim in a strictly businesslike manner, avoiding the presentation of personal judgments on the case, the expression of emotions. It is strictly forbidden to use obscene language in the text;
- all events are presented strictly in chronological order;
- the essence of the issue should be stated in detail, but at the same time without unnecessary digressions that are not relevant to the case;
- it is important to link to relevant regulations proving the correctness of the plaintiff. That is, if the employer fired a pregnant employee, then you need to indicate a rule that prohibits such actions;
- it is necessary to indicate as many details and facts as possible (dates, numbers of issued acts, positions and names of actors);
- you need to attach the received order of dismissal, a certificate of 2 personal income tax, a copy of the labor, collective agreement, as well as special documents related to a particular case.
It implies the information that can confirm the special status of the employee. If the mother is raising a disabled child, then you need to provide documents that directly confirm the fact of disability, as well as his birth certificate (to confirm the very fact of kinship);
If the employee has previously tried to resolve the issue (sent a claim to the company's management, turned to the Labor Inspectorate), then this should be mentioned, as well as provide a copy of the complaint and, if available, an answer to it.
The plaintiff can submit an application to the court in person or through a legal representative (if there is an officially notarized power of attorney). It is also possible to file a lawsuit by registered mail. But at the same time, a notification of delivery and an inventory of the attachment are mandatory requirements.
Jurisdiction provides that such applications are usually sent to the place of registration of the organization. Also, the dispute may be considered by the court at the place of registration of the plaintiff.
