Severance pay upon dismissal by agreement of the parties. How to receive monetary compensation upon dismissal - who is entitled, calculation of payment and procedure for registration
Severance pay upon dismissal - the procedure for its calculation, payments, the nuances of registration are discussed in our article. When properly processed, these payments are eligible for tax exemption. Details are below.
Severance pay upon dismissal due to redundancy, by agreement of the parties, due to disability, of one's own free will: common features
The Labor Code provides for various compensations in favor of the employee, their classification and some types are discussed in more detail in the article on the website. What are the types of compensation payments? . These include severance benefits upon dismissal (allowance upon dismissal for redundancy, severance pay upon dismissal by agreement of the parties, disability benefits, etc.), which have the following features:
- Payable only upon termination.
- They are one-time.
As a rule, severance pay upon dismissal is established by law in an amount proportional to the average earnings for 2 weeks, 1 month, and other period.
The amount of severance pay upon dismissal, paid on the basis of a collective agreement or employment contract with an employee, may differ from the values \u200b\u200bdefined in the Labor Code of the Russian Federation. The rules on the payment of severance pay apply only to the dismissal of an employee from an organization and do not apply to individual entrepreneurs, unless otherwise specified in the employment contract (clause 9 of the Review judicial practice RF Armed Forces dated November 15, 2017 No. 4).
When is severance pay paid upon dismissal in the amount of 2 weeks of earnings
The obligation to pay 2 weeks of average earnings arises upon dismissal on the basis of:
- refusal to transfer to another locality (clause 9, part 1, article 77 of the Labor Code of the Russian Federation), to work corresponding to the state of health (for example, due to disability);
- liquidation or reduction due to the seasonal nature of work (Article 296 of the Labor Code of the Russian Federation), etc.
The allowance is paid only for those days that would be working days for the employee according to his work schedule (see definition of the RF Armed Forces dated 08.08.2006 No. KAS06-284).
The grounds for payment are the order of dismissal and the note-calculation (more on this document below).
Now let's consider the procedure for payments during liquidation (the same applies when reducing the number or staff). It has features in comparison with the generally established one.
Payment of severance pay upon dismissal due to the liquidation of the organization
According to paragraph 3 of Art. 62 of the Civil Code, the founders of a legal entity are vested with the authority to make a decision on liquidation and determine its terms. For more information about what other actions are taken when performing this procedure, read the article on the website Step-by-step instructions for liquidating an LLC in 2016. This event, as well as the termination of work individual entrepreneur(IP), is the basis for the dismissal of employees at the initiative of the employer under paragraph 1 of part 1 of Art. 81 of the Labor Code of the Russian Federation.
To pay severance pay, you need to draw up the following documents:
- Written warning to employees no later than 2 months about the upcoming dismissal in connection with the liquidation.
- The written consent of the employee, if the administration decided to dismiss him for more early term. In such a situation, payable additional compensation in the amount of earnings for the remainder of the warning period (the calculation is similar to the definition of severance pay, article 180 of the Labor Code of the Russian Federation).
- The order of dismissal, with which the employee must be familiarized against receipt.
- Note-calculation according to f. T-61 (more about it below), which is the basis for payments, as an attachment to it - an accountant's certificate.
- Primary cash document when paying cash or payment document, confirming the execution of a non-cash transfer to the employee's account.
Read more about the dismissal procedure for liquidation in the article on the website Dismissal of an employee in connection with the liquidation of an organization. The same procedure applies to members of the liquidation commission.
Second and third severance pay: payment of average earnings for the period of employment for those laid off by reduction or liquidation
The employee is paid on average 2 months after the dismissal (3 months - in the districts Far North, Art. 318 of the Labor Code of the Russian Federation) with a severance pay offset. This payment is made after 2 (3) months from the date of dismissal upon presentation by the employee of a work book in which there are no records of employment after dismissal (a copy must be made from it for storage in the organization's affairs and certified).
In exceptional cases, the same allowance is paid for the 3rd month (4-6th months - for the Far North, Art. 318 of the Labor Code of the Russian Federation) from the date of dismissal by decision of the employment service body, subject to registration within 2 weeks (1 months - for northerners) after dismissal (part 2 of article 178 of the Labor Code of the Russian Federation). All dismissed employees, including pensioners, are entitled to this payment (letter of Rostrud dated February 11, 2010 No. 594-TZ), upon presentation of:
- work book;
- certificates from the employment authority on the preservation of earnings for the 3rd month (with the original left).
The requirement to submit other supporting documents does not comply with the Labor Code of the Russian Federation.
In the event of liquidation, settlements for the payment of severance pay are made in the 2nd place in accordance with Art. 64 of the Civil Code of the Russian Federation.
Other payments upon dismissal
The allowance may also be paid in other cases of dismissal provided for:
- TK RF. These are compensations to the head and chief accountant, as well as their deputies in case of a change in the owner of the organization by decision of the founder - in the amount of 3 times earnings (Articles 181, 279 of the Labor Code of the Russian Federation).
- other laws. For example, according to paragraph 3 of Art. 15 of the Law of the Russian Federation “On the Status of Judges in the Russian Federation” dated June 26, 1992 No. 3132-I - at least 6 times the amount of the monthly remuneration for the leaving position.
- Individual or collective labor contract, incl. severance pay may be provided own will. Similar conditions can be set out in an additional agreement to an employment contract (Article 57 of the Labor Code of the Russian Federation, letter of the Ministry of Finance of the Russian Federation of March 31, 2011 No. 03-03-06 / 1/188), but not in a dismissal agreement, which, even if it contains severance pay is provided for upon dismissal by agreement, is not:
- an additional agreement and cannot contain an obligation to pay benefits (see the appeal ruling of the IC in civil cases of the Altai Regional Court of 04.04.2017 No. 33-3807 / 2017);
- by the decision of the management on the payment of severance pay, provided for by the employment contract (determination of the IC for civil cases of the Armed Forces of the Russian Federation of August 10, 2015 No. 36-KG15-5).
The severance allowance provided for in paragraph 1 of the order of the Minister of Defense of the Russian Federation “On payment to the wives of military personnel ...” dated July 11, 2002 No. 265, paid from the budget of the Russian Federation, in the amount of 2 months of earnings when moving a spouse to work in another locality, is not considered a severance pay, since it not paid by the employer.
The procedure for calculating and terms of payment of severance pay
Payments upon dismissal are reflected in the note-calculation, drawn up according to f. T-61 (approved by the Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 No. 1). At the same time, the columns necessary for calculating the output compensation are not included in this document.
The order of calculation is given in the accounting statement-calculation, which is attached to the note-calculation. It is advisable to indicate in it the regulations governing the payment and the procedure for its calculation. There is no approved form of such a document, however, since it is necessary to justify the expenses of the organization, it is the primary accounting document. Its form must be fixed in the document on the accounting policy of the organization and include the details listed in Art. 9 of the Law "On Accounting" dated December 6, 2011 No. 402-FZ (name, date of compilation, essence of the operation, etc.).
Payment is made on the day of dismissal or before the end of next day after applying for it (Article 140 of the Labor Code of the Russian Federation). In case of violation of this period, the employee must be paid compensation for the delay on the basis of Art. 236 of the Labor Code of the Russian Federation (see the decision of the Leninsky District Court of Tomsk dated March 14, 2017 in case No. 2-527/2017).
Upon reinstatement at work, the amounts previously paid are subject to offset (clause 62 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts ...” dated March 17, 2004 No. 2).
Accounting for severance pay for tax purposes and issues of accrual and payment of personal income tax and insurance premiums
If the allowance does not exceed 3 times the employee's earnings (6 times for northerners), the provisions on exemption from taxation are subject to application:
- Personal income tax (Article 217 of the Tax Code). This provision applies regardless of the position previously held by the employee and the reason for dismissal (letter of the Ministry of Finance of the Russian Federation dated December 29, 2012 No. 03-04-05 / 6-1460).
- Insurance premiums (Clause 2, Part 1, Article 422 of the Tax Code of the Russian Federation, Clause 2, Part 1, Article 20.2 of the Law “On Compulsory Social Insurance ...” dated July 24, 1998 No. 125-FZ).
Compensation for early (after warning) dismissal is not a severance pay. It is also not subject to the transferred taxes and contributions on the basis of the above norms (letter of the Ministry of Finance of the Russian Federation of 04.14.2010 No. 03-04-06 / 6-74).
The amounts paid are subject to inclusion in costs (Articles 255, 272 of the Tax Code of the Russian Federation). These include payments made by agreement of the parties (decree of the Arbitration Court of the Ministry of Defense dated March 16, 2016 No. F05-1846 / 16 in case No. A40-120299 / 2015).
So, severance benefits upon dismissal are payments that have a specific status due to the special period and procedure for their payment. They are calculated from the average salary of the employee and are paid in the amount provided for by the Labor Code of the Russian Federation, other regulatory act or agreement with the employee. When paid under the Labor Code of the Russian Federation, they are exempt from personal income tax and contributions.
In some cases, on the last day of work of a departing employee, he is paid not only salary, vacation compensation, etc., but also severance pay. The two most common grounds are the reduction or liquidation of the company. The amount of payment is determined depending on the average salary and category of employee in accordance with the Labor Code. The rules and examples for calculating benefits are described in detail in the article.
Expert opinion
Chadova Svetlana
Leading Human Resources Specialist, lawyer consultant on labor law, site expert
Labor legislation provides for quite a few cases when, upon dismissal, an employee is given not only a salary calculation, unused vacations and other compensation, but also a severance pay. The main 2 cases are dismissal and due to the termination of the company's activities (bankruptcy, reorganization, etc.). In such situations, allowance is due for a maximum of 2 months.
There are also a number of other reasons (conscription to the Armed Forces of the Russian Federation, refusal to transfer to another position for medical reasons, etc.), when an employee is also guaranteed severance pay, but it is paid only for 14 days.
If an employee works in a company located in the Far North, he has the right to receive severance pay upon dismissal on the same grounds. However, the maximum payment period can be increased to 4-6 months, if, being officially unemployed (registered with the employment service), he still cannot find a job.
A similar guarantee applies to seasonal workers; they are also paid benefits for 2 weeks.
Another reason is the violation by companies of the rules for concluding an employment contract. In this case, the amount of severance pay is one monthly salary.
If the leader, his deputy or Chief Accountant, the amount of payment is 3-month earnings (or higher). Reason for leaving this case- change of ownership of the company.
The same amount of payments is due to the manager who leaves work by decision of the owner of the company.
Thus, the employer pays both benefits and average earnings per month only on the basis of reduction or liquidation. In other cases, the employee can only claim the benefit itself. For all other reasons, the allowance is not paid– dismissal at the personal request of an employee, in case of violation of discipline, as well as dismissal of a person who was hired on fixed-term contract(validity period is not more than 2 months).
Allowance and dismissal by agreement of the parties
At any time, the employee and the manager can come to an agreement according to which the employee is dismissed from a specific date.
Thanks to this, he can quickly start looking for a new job, and the company gets rid of an “undesirable” employee in the state. Often in such cases, the parties agree on compensation, i.e. compensation, which is the severance pay. Since the legislation does not oblige the appointment of a payment upon dismissal by agreement, the employee and management agree on this individually.
The document is drawn up in an arbitrary form, the main condition for its signing is the voluntary decision of each party. The agreement contains information about the parties (name of the company, full name of the director or other person acting on his behalf, full name and position of the employee), as well as:
- date of termination of the employment contract (this is the day of dismissal);
- the amount of the allowance, the procedure for its payment;
- assertion that the parties have no claims against each other;
- their signatures, decoding of signatures (surnames, initials);
- date, seal of the organization.
The payment of benefits can be initially provided for under an employment contract (individual or collective). This is an obligation of the company, which it assumes voluntarily. In this case, the procedure and amount of payments are determined directly by the text of the contract or additional agreements to it.
Severance pay for employees hired by IP
It is important to understand that from the point of view of legislation, employees who have labor Relations with enterprises (legal entities) and employees working for individual entrepreneurs have an unequal legal status. In general, they can count on the same labor guarantees, however, severance pay upon dismissal is not paid by the employer if:
- he liquidates his company (ceases activities as an individual entrepreneur);
- cuts staff.
Appropriate explanations were given Supreme Court RF.
The logic of the court is based on the fact that the IP is individual who is also an employer. However, since his company is not registered as entity(for example, LLC), whole line provisions of the Labor Code do not apply to him. Thus, severance pay from an individual entrepreneur can be received only in cases where this is directly provided for by the employment contract.
How the allowance is calculated: rules and practical examples
According to the above articles of the Labor Code, the amount of severance pay is determined by the average earnings received by the employee per month. The allowance can be 1-fold (for 1 month), 2-fold and less often larger.
* Also, benefits can be paid for 3 months, but only if the citizen is officially recognized as unemployed (registered with the employment service), but never received new job. In the case of workers from the Far North, this period can be extended to a maximum of 6 months.
Thus, to calculate the amount of payment, you need to perform 2 steps:
- Determine your average monthly income.
- Determine the category of employee in accordance with the Labor Code.
Earnings are determined for the last 12 months (or less time - according to the actual length of service of the employee in this company). This is an average value, the calculation of which takes into account:
- actual salary;
- bonuses and bonuses;
- allowances;
- other types of payments that are prescribed in the internal normative documents employer.
In general calculation formula looks like that.
An employee works for the company for 18 months and leaves due to redundancy. His salary consists of a salary of 30,000 r and a bonus. It was paid quarterly, averaging 5,000 rubles. Then it turns out that for the entire period 6 bonuses were earned (for 6 quarters) in total amount 30000 r. The average salary is: (30,000 * 18 months + 30,000 r) / 18 months. = 31667 rubles. This is the amount of severance pay for 1 month.
The employee works in the company for 6 months and 10 days, leaves due to the call for military service. His salary is fixed and amounts to 36,000 r, bonuses were not awarded. We determine the average daily earnings based on the fact that there are 21 working days in a month: 36000/21 \u003d 1714 rubles. The benefit must be paid within 14 days. Therefore, its size is 1714 * 14 = 23396 rubles.
The benefit is due if the dismissal occurs for reasons beyond the control of the employee. The amount of money is designed to ensure that a person has a livelihood before looking for another job.
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The amount of the payment depends on the reason for the termination of the employment contract.
The employer has the right to establish additional payments, in accordance with local acts.
The calculation of the amounts is carried out by the accounting department. The Human Resources Specialist maintains timesheets. Dismissal for reasons beyond the control of the employee should be carried out with advance warning.
In case of liquidation of the organization, the employee must be warned against signature 2 months in advance. If it is assumed that the dismissal will be massive, then this should also be warned public service employment.
What's happened?
Severance pay upon dismissal is the amount provided by the employer upon termination of the employment contract.
Funds are provided separately from wages, for the period actually worked, as well as in the form of compensation for unused vacation. The amount of the payment is accrued in 1-3 times the amount of earnings.
Legislation
The procedure for payment of benefits is established.
The obligation to pay severance pay is established in.
Guarantees and compensation payments to employees of an organization subject to liquidation or reducing its staff are established in.
Guarantee benefits to the head of the company, his deputies and the chief accountant in connection with the change of ownership of the organization's assets are defined in.
Grounds for termination of an employment contract
Severance pay is due for:
- the abolition of the enterprise;
- downsizing;
- dismissal of the head of the company, his deputy and chief accountant in connection with the change of ownership of the organization's assets;
- unwillingness of the employee to be transferred to another job in connection with the conclusion of medical specialists;
- conscription for military or alternative service;
- reinstatement of an employee at work;
- refusal of an employee to transfer to work in another locality along with the employer.
The benefit is due upon dismissal of an employee found unfit for work. labor activity for medical reasons.
Dismissal with severance pay is due if the employee has not agreed to amend the employment agreement.
Payments are also due on the basis of the Labor Code of the Russian Federation - if it is found out that the termination of an employment contract drawn up with errors was carried out through no fault of the employee.
Severance pay upon dismissal
Payments are made together with the basic salary. If the benefit is due for several months, then for the second and subsequent months, payments are due if the employee has no other job.
The specialist must provide at the previous place of work work book. Reduction of the benefit amount is not allowed.
On downsizing
If the employment contract is terminated in connection with, then the employee is paid an allowance in the amount of the average salary for 1 month.
He retains the average monthly salary for the period of looking for another job, but not more than two months.
Exceptions may be initiated by the employment center. He can keep the average monthly income of the employee at the previous place of work if the employee applied to the employment service within two weeks after leaving and could not find a new vacancy.
By agreement of the parties
If the dismissal has passed, then the allowance is not paid. The employer himself can pay compensation to the employee if the incentive is provided for by local acts.
Of your own accord
Severance pay on the application for dismissal of an employee is not relied upon.
The employer must ensure that leave is calculated and reimbursed if the employee is unable to use it.
By disability
If an employee is dismissed due to disability, then he must present the relevant medical documents - the conclusion of the medical commission and the ITU certificate.
The employee is entitled to an allowance in the amount of two weeks of average income.
Payout amount
The minimum wage is two weeks. The maximum is the six-month average income of an employee (Article 318 of the Labor Code of the Russian Federation).
Company executives, their deputies, chief accountants receive a payment not less than three times the average income.
How to calculate?
Average earnings are calculated by taking into account the employee's annual total income, or income for a shorter period that is divided into 12 months or less.
The amount received can be divided over a shorter period. For example, if the average salary of an employee who leaves for medical reasons is 15 thousand rubles, then after dismissal he is entitled to a payment of 7,500 rubles. (For two weeks).
Is it subject to VAT?
In 2019, personal income tax on severance pay is paid if its amount is three times the average income of the employee.
Payments are withheld by the employer, and if they are made after the termination of the employment agreement, the amounts are transferred by the employee independently.
Payment of insurance premiums
Insurance transfers from benefits are not withheld. The employer has the right to transfer amounts to the FSS from additional payments to the employee, including from bonuses and other amounts.
Usually, if the employee does not quit and continues to work, the employer is required to transfer contributions every month. The employee has the right to find out about the amount of transfers on the FSS website.
Do they charge child support?
According to Government Decree No. 618, alimony can also be withheld from severance pay.
For enforcement proceedings, the withholding is up to 70% of the payment to the resigned employee.
Can the amount be changed at the initiative of management?
It can only be changed upwards. The employer has the right to independently accrue additional payments to the employee, for example, for long service, excellent work, disciplined work, etc.
Registration procedure
Severance pay is a monetary compensation paid to an employee on the last working day, determined by the Labor Code of the Russian Federation or the terms of a collective agreement. The amount of the benefit is not specifically indicated, it depends on the grounds for dismissal of the employee. Naturally, in addition to the severance pay, the resigning employee must be paid wages and compensation for vacation days that he did not take off. But that's a completely different story.
Grounds for dismissal and the amount of accrued severance pay
If the reason for the dismissal of an employee is the termination of the employment contract associated with a reduction in staff or the liquidation of an organization, then he must be paid the average salary for two months (for the first month it is mandatory, for the second if the employee cannot find a job at that time). If an employee applies within two weeks after his dismissal to the employment service and they cannot find him a job there for the next month and a half, then he will be paid the average earnings for another month.
The payment of a severance pay to an employee in the amount of two weeks' earnings is provided for in cases where he is dismissed for the following reasons:
The employee does not correspond to the position held or the work performed for health reasons;
Calling up an employee to serve in the army or to an alternative service that replaces it;
If the employee refused the transfer associated with the relocation of the employer to another region.
All these grounds are spelled out in the relevant paragraphs of the articles of the Labor Code of the Russian Federation.
The legislation provides for the payment of a severance pay to an employee in the amount of his monthly earnings in the event that the termination of the employment contract occurred due to violation of the rules for its conclusion. But only in cases where such violations do not allow the employee to perform labor obligations, and it is not his fault for allowing such violations.
An employment or collective agreement provides for other cases for the appointment and payment of severance pay, and also allows for the establishment of their increased amounts.
Severance pay for certain categories of employees
Separate rules and procedures for the payment of severance pay have been established for certain categories of employees. Thus, a civil servant must be paid the average earnings for the last three months for his position in cases where the dismissal is related to the liquidation government agency where he served or downsized. This does not include severance pay. Moreover, if a civil servant could not be provided with a job corresponding to his profession and qualifications, then he will be listed in the reserve of the register of civil servants, and the civil service experience will be considered continuous for one year.
It should be added that collective agreements can only improve the legal position of an employee, but not worsen it in any way with respect to those provided for in Labor Code and other labor laws regulations provisions.
This means that the Labor Code of the Russian Federation and other legislative acts regulating a specific area of work activity establish the minimum allowable amount of severance pay. A maximum size benefits are determined by a collective agreement or a separate agreement.
In conclusion, it should be noted that a severance pay equal to three months of average earnings is not subject to personal income tax. If the amount of payment exceeded this value, then income tax is charged on the amount exceeding the established limit.
For the category of workers performing labor duties in the regions of the Far North and equated to them, the non-taxable limit has been doubled and amounts to six average monthly salaries.
Severance pay upon dismissal - grounds for payments
In what cases is severance pay paid upon dismissal? An allowance in the amount of average earnings (per month) is paid to a dismissed employee upon termination of the contract due to a reduction in the staff of the organization or in connection with the liquidation of this organization. At the same time, the employee retains the average salary for the period of employment (the term is no more than two months, starting from the day of dismissal).
A severance pay, the amount of which is equal to earnings for two weeks, is paid to the employee upon termination of the contract under such conditions as:
Refusal of an employee to transfer to another job.
Call for military service.
On-site reinstatement of an employee who previously performed this work.
Recognition of disability.
Refusal of an employee to continue work.
Severance pay during reduction - what does the Labor Code say?
The Labor Code of the Russian Federation guarantees each employee a severance pay in case of staff reduction. That is, the employer has no right to "get out" of benefits. Upon dismissal for this specific reason, and not, for example, by agreement of the parties, the employee has every right to demand payment, and the employer is obliged to pay benefits.
Paid severance pay for redundancy in the amount equal to the average earnings. As for the second severance pay, it can be received for the second month if the employee is not employed.
An employee who is busy seasonal work, must receive a severance pay of the Labor Code of the Russian Federation in an amount equal to earnings for two weeks.
An employee with whom an agreement has been concluded for a period of up to 2 months does not receive severance pay, unless otherwise provided by the agreement.
Calculation of severance pay upon dismissal or reduction
Upon dismissal (reduction), the calculation of severance pay is carried out according to a certain formula:
The average earnings for one working day are multiplied by the number of working days that are included in the benefit calculation period. As for the average daily earnings, it is calculated not for a calendar, but for a working day. The number of working days is calculated according to the production calendar (the more days off, the less the benefit will be). Taxes are not deductible from this type of benefit.
The average earnings are calculated as follows: the salary for the year before the month in which the dismissal occurred (and excluding sick leave / vacation, etc.) is divided by the number of working days for this period, according to the production calendar.
