(in other words, at the initiative of the employee) - one of the most common grounds for termination employment contract. Termination Initiative labor relations comes from the employee and does not imply its approval by the employer, because a person cannot be forced to work against his will. However, even upon dismissal at will certain rules must be followed.
The procedure for dismissal at will
The procedure for dismissal at will involves, first of all, the employee writing a letter of resignation. The application indicates the date of dismissal and its basis (“at one’s own request”), it must be signed by the employee indicating the date of preparation.
Indicate in the application reason for voluntary resignation not necessary. However, if circumstances require you to resign, then the reason must be indicated, and HR employees may ask you to document it. In other cases, the phrase “I ask you to fire me at your own request on such and such a date” is sufficient.
After the resignation letter has been submitted to the personnel service, a dismissal order. Typically, a unified form of such an order (), approved by Resolution of the State Statistics Committee of January 5, 2004 No. 1, is used. The order must make a reference to the Labor Code of the Russian Federation, as well as provide details of the employee’s application. The employee must be familiarized with the dismissal order against signature. If the order cannot be brought to the attention of the dismissed person (he is absent or refused to familiarize himself with the order), then a corresponding entry is made on the document.
Timing of voluntary dismissal
By general rule, enshrined in, the employee must notify the employer of the upcoming dismissal no later than two weeks in advance. This period begins the day after the employer receives the resignation letter.
However, the so-called two-week working period can be reduced by agreement between the employee and the employer. In addition, the law does not oblige the employee to be at the workplace during the period of notice of dismissal. He can go on vacation, sick leave, etc., while terms of dismissal will not change.
From the general rule about two-week work There are statutory exceptions. Thus, if you are dismissed during the probationary period, the notice period for dismissal is three days, and if the head of the organization is dismissed, it is one month.
Calculation upon dismissal at one's own request
Calculation upon dismissal at one's own request, as well as for other reasons, must be made on the day of dismissal, that is, on the last day of work. Calculation of severance involves the payment of all amounts due to the employee: wages, compensation for unused vacations, payments provided for in the collective and labor agreements. If the dismissed employee used vacation in advance, the paid vacation pay is recalculated, and the corresponding amount is deducted from the salary upon final payment.
If an employee was absent from work on the day of dismissal and was unable to receive a payment, he has the right to apply for it at any other time. The amount due to him must be paid no later than next day after contact.
Dismissal at your own request during the vacation period
Resign at your own request during the vacation period the law does not prohibit. Such a prohibition is provided only for dismissal at the initiative of the employer. An employee has the right to write a letter of resignation while on vacation, or to include the date of proposed dismissal during the vacation period.
If an employee wants to submit a letter of resignation while on vacation, there is no need to recall him from vacation
An employee can also resign of his own free will after using his vacation. Please note that granting leave followed by dismissal is a right, not an obligation, of the employer. If such leave is granted, the day of dismissal is considered the last day of leave. However, for the purposes of settlements with the employee, the last day of work in this case is the day before the start of the vacation. On this day, the employee should be given a work book and all necessary payments should be made. This is a kind of exception to the general rule given, confirmed.
Dismissal at will during sick leave
Quit voluntarily while on sick leave Can. prohibits such dismissal only at the initiative of the employer.
An employee has the right to apply for dismissal during a period of temporary incapacity for work. A situation may also arise when the previously agreed upon dismissal date falls on the sick leave period. In this case, the employer will formalize the dismissal on the day specified in the resignation letter, provided that the employee has not withdrawn this application. The employer does not have the right to independently change the date of dismissal.
On the last day of work, even if it falls on sick leave, the employer makes the final payment and issues a dismissal order, in which he makes a note about the employee’s absence and the impossibility of familiarizing him with the order. The employee will come for the work book after recovery or, with his consent, it will be sent to him by mail. All amounts due to the employee will be paid to him
Such an event happens sooner or later in the life of every person. Depending on the circumstances, it may or may not be pleasant, but leaving work is associated with a number of additional circumstances that you need to know about in advance and be prepared for.
One of these points is the procedure for the final settlement of an enterprise with a resigning employee.
The main reasons and methods of dismissal in accordance with the Labor Code of the Russian Federation
Employee initiative
One of the most common reasons dismissal is an employee, expressed in the form of a corresponding statement, which is written by him in any form. This document is drawn up two weeks before the expected departure so that the employer has the opportunity to select a replacement for the retiring employee.
Situations are possible and actually practiced when the parties agree not to comply deadline when leaving work. But if an employee wants to work these two weeks, the organization is obliged to pay for them.
Termination without working out a two-week period possible in the following cases:
- employee’s admission to study;
- dismissal due to retirement;
- change of place of residence;
- the need to care for a disabled person of the first group;
- if the employer violates the requirements of labor legislation.
In all of the above circumstances, the employee may not work the two-week period, even if the employer insists on this.
During the “working off” period, the employee has the right to withdraw his application and continue to perform his duties.
If you have not yet registered an organization, then easiest way do this using online services, which will help you generate all the necessary documents for free: If you already have an organization, and you are thinking about how to simplify and automate accounting and reporting, then the following online services will come to the rescue, which will completely replace an accountant in your company and save a lot money and time. All reporting is generated automatically, signed electronically and sent automatically online. It is ideal for individual entrepreneurs or LLCs on the simplified tax system, UTII, PSN, TS, OSNO.
Everything happens in a few clicks, without queues and stress. Try it and you will be surprised how easy it has become!
Agreement of the parties
This method of action is chosen by the administration in order to get rid of an unwanted employee when he does not give rise to any aggressive actions.
The head of the enterprise proactively meets with the employee and offers him an agreement that can suit both parties. As a rule, the administration offers monetary compensation in the amount of 2–3 months’ salary.
In this case, the wording of the reason for leaving may be as worded in paragraph 1 of Art. 77 of the Labor Code, and under Art. 78 of the same document.
Staff reduction
This type of dismissal requires compliance with a certain procedure, namely:
- a reduction order is issued;
- a mandatory step is to notify the employees to be laid off and offer them another job at the given enterprise;
- message about the upcoming event of the trade union organization and the employment service;
- dismissal of employees if they do not agree to employment for the proposed positions.
The process of terminating a contract on this basis is regulated by Article 181 of the Labor Code.
Employer initiative
There is a clause that all types of compensation are not subject to taxation, with the exception of that for unused vacation.
What payments are due to an employee upon dismissal are described in the following video:
Procedure for calculating compensation
The basis for calculating compensation payments is the employee. It is calculated based on the money paid divided by the number of days worked. In this case, not only the salary amounts are taken into account, but also all bonuses, allowances and other payments stipulated under the contract. Average daily earnings are multiplied by the number of unused vacation days.
All taxes are paid from the accrued amount and deductions are made to funds.
Upon termination labor contract at the initiative of the enterprise, the employee is accrued severance pay in the amount of earnings for two weeks or a month.
Payment terms
An indispensable requirement of the Labor Code of the Russian Federation is the payment of accrued amounts to the employee on the day of dismissal.
These include:
- payment for hours worked for the current month;
- compensation payments for vacation not taken;
- severance payments to those who are entitled to them.
If the procedure for paying settlements upon dismissal is violated, the payer may be charged a fine in the amount corresponding to the refinancing rate of the Central Bank of the Russian Federation.
In this case, all taxes must be calculated on the amount of compensation for vacation.
Severance pay and the remaining average monthly earnings are not subject to personal income tax and no contributions are made to funds.
Calculation note about accruals upon dismissal
This document is drawn up according to the approved form T-61. Filling front side is carried out by the personnel department of the enterprise indicating all its registration and bank details.
The reverse side of the form must be filled out by an accounting employee with detailed notes on accruals and an indication of the total amount. Signed by the head of the personnel department and the chief accountant of the enterprise.
The note is the basis for the payment of settlement amounts along with the order to dismiss the employee.
Responsibility for late payments
As mentioned above, paychecks are issued to the dismissed person on the day of dismissal. For compliance with the payment deadline, the company is responsible financial liability in the amount of 1/300 of the Central Bank refinancing rate for each day of delay.
If there is a delay in the calculation, you need to contact the labor inspectorate with a free-form application. The inspector of this service will issue an order to complete the calculation and monitor its implementation.
If the labor inspector’s decision is not fulfilled, you can go to court, which, most likely, will be on the side of the plaintiff and will demand the due amount from the defendant.
The payment terms for dismissal are described in the following video:
The deadline for payments upon dismissal is the last day of work (Article 140 of the Labor Code of the Russian Federation). If the employee did not work on the day of dismissal, then the issuance period is the day following the day the employee submitted a request for payment. Failure to pay wages upon dismissal is punishable for the employer. Art. 236 of the Labor Code of the Russian Federation establishes the obligation of the organization, in case of untimely payment, to pay compensation to the employee, which is equal to 1/300 of the current refinancing rate of the Central Bank of the Russian Federation (currently it is 8.25%) for each day of delay.
To determine the amount of compensation due, you must use the following formula:
K=P: 100% x 1/300 x ∑ x D, where:
K - amount of compensation;
R - refinancing rate;
∑ - amount of debt;
D - number of overdue days.
Upon dismissal, the employee must be paid:
- salary for actual days worked;
- 13 salary (if specified in the collective agreement or in the bonus regulations)
- compensation for vacations unused by the employee (Article 127 of the Labor Code of the Russian Federation);
- severance pay (in case of liquidation of an organization and reduction of staff) (Article 178 of the Labor Code of the Russian Federation).
Payroll calculation upon dismissal
The calculation of wages also depends on the form of remuneration at the enterprise. It is made for all days worked by the employee, and the day of dismissal is also included in the calculation. 13 salary is determined in proportion to the months worked in the current year.
Calculation of compensation for unused vacations
To determine the amount of compensation for unused vacations by an employee, you should use the following formula:
Kotp = Zsr.dn. x Notp, where:
Notp - the number of vacation days unused by the employee is determined:
Notp = 2.33 x Nmonth, where
Nmonths - the number of months worked for which vacation was not granted.
The month worked more than half is taken into account.
Zsr.dn - average daily salary, determined:
Zav.days = Dyear: 12 x 29.4, where
Dyear - the employee’s income for the calendar year preceding the month of dismissal.
Payment of severance pay upon dismissal
When an organization is liquidated (clause 1, part 1, article 81 of the Labor Code of the Russian Federation) or when staff is reduced (clause 2, part 1, article 81 of the Labor Code of the Russian Federation), the employee is required to pay:
- severance pay - one average monthly salary, issued on the day of dismissal;
- allowance for the period of employment - in the amount of one average monthly salary. Severance pay is issued two months after dismissal;
- benefit for the period of employment - one average monthly salary, provided that the employee applied to the labor exchange within 14 days, but was not employed. In this case, the organization is obliged to pay benefits a third time. The employee must present, in addition to work book, additionally a certificate from the employment service. In the northern regions, the average monthly salary remains up to six months without employment.
Non-payment or delay of salary upon dismissal
If the employer violates the deadlines for paying wages upon dismissal, as well as other required payments, then the employee has the right to contact the labor inspectorate (Article 356 of the Labor Code of the Russian Federation), the prosecutor's office or the court with a statement. So that the employer does not have grounds to claim that the employee himself did not show up for payment, it is necessary to contact him with a claim before contacting the justice authorities. In it, indicate: the date of dismissal, that wages and other payments were not paid, and the intention to appeal to the justice authorities. It is written in two copies, one for the employer, and the second with an incoming registration number for the employee. Also, the claim can be sent by registered mail with notification. The labor inspectorate is obliged to consider the complaint within 30 days (clause 1 of article 12 of Federal Law No. 59).
Deadlines for filing a complaint with the justice authorities from the moment of receipt of the work record book or a copy of the dismissal order:
- to the labor inspectorate - no later than three months (
The final settlement with the employee upon his dismissal implies payment Money, which are due to the latter for all his time labor activity. In this case, it is necessary to take into account the grounds for termination of the contract. After all, a citizen’s salary and other necessary payments will depend on this basis. In such a situation, the manager should not forget that full settlement with the resigning person must be made on the day the employee last time carries out its activities in this organization. Otherwise, the boss simply cannot avoid problems with the law.
Calculation period for voluntary dismissal with working off
According to the provisions of Article 140 Labor Code, the manager must pay all funds due to the citizen on the last day of his work. And if it is impossible to carry out this procedure at the specified time, it must be done the next day when the employee made a demand for settlement with him. Otherwise, management may be in big trouble if a person seeks protection of violated rights in court.
Calculation period for dismissal of one's own free will without working off
The employer is obliged to make calculations and payments upon dismissal of an employee in full. Delay is not permitted by law. If an employer for any reason delays a full payment to a resigned employee, the latter has the right to write a complaint to the labor inspectorate or file a claim in court.
The employee receives a full payment upon dismissal based on the Order from the employer on dismissal this employee. The order has unified form, which HR employees must adhere to.
The employer is obliged to pay the resigning employee:
wages for actual time worked;
compensation for unused vacation;
severance pay in cases where it is provided labor legislation, collective or labor agreement.
Wages are paid in accordance with the salary or tariff rate of the dismissing employee. The employer is obliged to pay for all time actually worked from the beginning of the month, including the last working day. For example, an employee’s salary is 32,000 rubles. He resigns on March 23. In March there were 21 working days, the employee worked 14 days. Salary for March 32,000 / 21 * 14 = 21,333 rubles.
Compensation for unused vacation
Compensation for unused vacation depends on the employee’s average earnings for the last “working” year, as well as on the number of months when vacation was not used. Also, an employee can first go on vacation and then resign immediately. For example, upon dismissal, an employee has 9 days of vacation. The compensation will be equal to 32,000 / 29.3 * 9 = 9,829.3 rubles.
Severance pay is paid in cases provided for in Art. 81 of the Labor Code of the Russian Federation, when dismissal occurs at the initiative of the employer:
reduction of staff or number of employees;
liquidation of the enterprise;
the employee’s refusal to move with the employer or transfer to another position;
conscription of an employee into the army;
recognition of an employee as unfit to perform this work due to a medical report.
Calculation period for voluntary dismissal during a probationary period
Dismissal during a probationary period can be carried out at the initiative of both the employee and the employer. However, despite the short period of work, the procedure for dismissing an employee during a probationary period must also be followed.
When working on a probationary period, an employee can stop working by notifying the employer 3 days in advance (Article 71 of the Labor Code of the Russian Federation). But this is only if the provision for a probationary period is specified in your employment contract. If it is not there, then you must notify 2 weeks in advance (Article 84.1 of the Labor Code of the Russian Federation)
Article 140. Terms of payment upon 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 amount of 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.
When should you pay for voluntary dismissal?
The final payment deadlines for dismissal are strictly regulated by labor legislation. They are mentioned in Art. 140 Labor Code of the Russian Federation. This article states that the timing of payment of settlement upon dismissal is limited to the day of dismissal of the dismissing employee.
144.76.94.14
As a general rule, the day of dismissal is considered the last working day. But the last working day and the day of dismissal of the employee do not always coincide. There are exceptions to the rules.
For example, an employee works in shifts - every three days. His last shift was on May 15, and he quits on May 17. In this case, his last working day is May 15, and the day of dismissal is May 17.
The employee must come to work on May 17 and receive final payment. This is done to avoid unnecessary delays. And in Art. 140 of the Labor Code of the Russian Federation states that if the last working day and the day of dismissal do not coincide, then the employer must pay the employee all the money the next day after receiving the employee’s request for full payment.
The law does not say in what form this requirement must be presented - written or oral.
If the employer and employee do not come to a common opinion regarding the amount of all payments, then the employee has the right to write a complaint to the labor inspectorate. In this case, the employer will be audited, and the deadline for calculating payments upon dismissal will be “shifted” for an indefinite period.
If an employee is not satisfied with the decision of the labor inspectorate, he has the right to sue the employer demanding a recalculation of the final amount of payments. The employee will not receive his money until there is a court decision, regardless of in whose favor it is made.
Termination of an employment contract with an employee is always associated with a number of mandatory procedures for the management of the enterprise, and first of all, it entails the need to make settlements upon dismissal. At the same time, the final amount should reflect not only wages for the days worked by the employee, but also compensation payments, including for unused vacation. In addition, depending on the reason for dismissal, the employee may be paid severance pay upon settlement.
The Labor Code of the Russian Federation stipulates that in a number of cases the employer must transfer additional payments to the employee upon dismissal. According to Art. 178, severance pay is paid in the event of:
- liquidation of the enterprise;
- staff reductions;
- the employee’s disagreement to continue working when significant change working conditions, transfer to another position or to an enterprise located in another area;
- conscription of an employee into the army or his transfer to alternative service;
- inability to continue working due to health reasons.
The amount of severance pay depends on the reason for which the employee was fired, and can range from 2 weeks’ pay to two (and sometimes three) months’ pay. If an employee is not paid upon dismissal or the amount due to him is not paid in full, this may result in the employer being held liable. The employee has the right to go to court and demand not only the amount due to him, but also compensation for its withholding (Article 236 of the Labor Code of the Russian Federation).
This procedure requires additional costs associated with the trial. If it is proven that the dismissal payment was not paid on time due to the fault of the employer, then he will not only bear financial responsibility, but may also be brought to administrative or criminal liability. However, resolving the issue through the court is a rather lengthy procedure. Therefore, it is better to decide in advance the question: “How to get paychecks after dismissal?”
Payments upon dismissal
Termination of the employment relationship between an employee and an employer involves making a full settlement between them. The amount of transfers depends primarily on the article under which the dismissal occurs and whether it provides for the payment of compensation. IN general procedure an employee can count on:
- payment for days actually worked for the current reporting period;
- recalculation for unused vacation days for the entire period of work;
- severance pay (if it is provided in this situation).
When calculating the payroll, the salary upon dismissal is taken into account along with all allowances due to the employee.
The legislation establishes strict requirements regarding the procedure for paying compensation upon dismissal, as well as the time frame within which the company must transfer the funds due to the employee. In accordance with Art. 84.1 and art. 140 of the Labor Code of the Russian Federation, full settlement with the dismissed employee must be made on his last working day. If for some reason the employee did not work on the day of payment, then payment after dismissal is made no later than the next day from the moment the request for payment is received from him.
In accordance with Art. 236 of the Labor Code of the Russian Federation, if the employer violates the terms of payment of wages, including when dismissing an employee, he bears financial liability in the form of monetary compensation for each day of delay. It should be noted that when an employee goes to court, he also has the right to demand indexation of the amount of debt to the current inflation rate.
In addition, the employer may be involved in administrative responsibility according to Art. 5.27 Code of Administrative Offenses of the Russian Federation. In accordance with it, individual entrepreneur or executive who is guilty of violating the terms of payment upon dismissal will receive a fine of up to 5 thousand rubles. For legal entities the amount is more significant - from 30 to 50 thousand rubles. In the event of a repeated violation, an increase in the amount of the fine or a ban on employment in a managerial position is provided. To bring the employer to administrative responsibility, the employee must contact the State Tax Inspectorate department operating in the territory where the enterprise is located.
In especially severe cases, with a long delay in wages (from 3 months if part of it is not paid and from 2 months if the entire amount is withheld), the employer may be held criminally liable in accordance with Art. 145.1 of the Criminal Code of the Russian Federation. In this case, a fine may be imposed on him with a ban on holding leadership positions, involvement in public works or imprisonment for up to 3 years.
It is important to take into account that criminal liability provides for the presence of mercenary intent in withholding wages. Therefore, a person can be involved in it only after it has been proven that he has a personal interest in withholding payment upon dismissal. For example, the director of an enterprise delayed payments in order to misuse them.
Compensation for unused vacation upon dismissal
When paying money upon dismissal, you need to pay attention to important point: when calculating compensation for unused vacation, it is not the calendar year that is taken into account, but the working year, starting from the day the employee was hired. The calculation is made based on the employee’s average daily earnings multiplied by the number of vacation days due to him. It is important to consider that from this amount, in accordance with current legislation, all mandatory deductions, as well as income tax, must be paid.
If the employee has a debt to the company, the amount of the debt is deducted from the amount of payments when calculating. Debts also include vacation days taken on account, but not actually worked. To carry out such deduction, it is necessary to calculate the actual time worked in the current year.
Deduction for unworked vacation days is not made if:
- the enterprise is liquidated;
- the employee is being paid due to the impossibility of continuing work due to health reasons and has refused to be transferred to another position;
- the worker was drafted into the army;
- the dismissal of a manager or accountant is made in connection with a change in the owner of the enterprise;
- the former employee was reinstated to the position occupied by the employee (through the court or by decision of the labor inspectorate);
- the employer is a private individual, was recognized in in the prescribed manner missing or deceased;
- dismissal occurs for reasons beyond the control of the parties or due to force majeure.
Let’s take a closer look at how an employee’s dismissal calculation is made and the timing of its implementation. Employee Ivanov worked at the company for 4 years, after which he wrote a letter of resignation of his own free will. In this case, he is not paid severance pay or other additional payments. To make the final calculation, the accountant needs to calculate the amount of wages for actually worked and unpaid time, and also take into account vacation compensation.
Ivanov’s monthly salary at this enterprise is 20 thousand rubles. The total working days this month are 22. Accordingly, his daily earnings are 909.09 rubles (20 thousand rubles/22 days). This month he worked 17 days. This means that for the time actually worked, he should be credited 15,454.53 rubles. From this amount all deductions required by law are made.
2 months have passed since the beginning of his current working year, for which he did not use vacation days. According to the rule approved by law, it is generally assumed that an employee receives 2.33 days of vacation per month worked. Based on this, O the final calculation when dismissing employee Ivanov is as follows: 2.33 x 2 (months worked) x 909.00 (daily earnings) = 4236.36 rubles. In total, he must be paid: 4236.36 + 15454.53 = 19690.89 rubles"
Documents upon dismissal
According to Art. 84.1. According to the Labor Code of the Russian Federation, the termination of the labor relationship between an employee and an employer is formalized by an appropriate order or directive. This document must be drawn up in accordance with the requirements for drawing up personnel documentation approved by the State Statistics Committee, in form T-8 and T-8a.
The employer is obliged to familiarize the employee with the order against signature. The employee has the right to request a copy of this document, duly certified. If, due to objective reasons, it is impossible to familiarize the employee with the order to terminate the employment contract, or he refuses to sign the document, a corresponding note is made on the order.
On the day of dismissal, the employer must not only make a full settlement with the employee, but also provide him with the necessary documents:
- work book;
- certificate form 2-NDFL;
- a certificate of earnings for calculating benefits;
- duly certified documents related to the employee’s performance of his labor functions(at his request).
Personnel department employees must pay special attention to the timeliness of issuing the work permit to the former employee. The legislator does not allow this document to be retained by the enterprise. If it is impossible for the employee to deliver it on the day of payment, or he refuses to receive it, then the employer is obliged to send him a notice of the need to come to the enterprise for it or agree to send it by mail. After sending such notice, the employer is released from any responsibility for withholding the work record.
After receiving a written request from a former employee to transfer employment after dismissal, an authorized official of this enterprise must transfer this document to him no later than three days from the date of application.