Severance pay is not paid in the following case. Is severance pay subject to personal income tax reduction?

Among different types benefits there is a so-called severance pay upon dismissal. This cash equivalent It is not paid to everyone who decides to quit, but only to those who are forced to do so due to current circumstances.

Severance pay

Article 178 of the Labor Code of the Russian Federation informs in what cases, upon termination of work, an employee is entitled to monetary compensation. Severance pay upon dismissal is a sum of money to the person receiving the payment, assigned in accordance with the requirements of the law in the amount of average monthly earnings or earnings for 2 weeks. Benefit in large sizes appointed in certain cases regulated by the code (Article 181 of the Labor Code of the Russian Federation).

The manager also has the right to issue a local order within his organization to pay the resigning person financial support.

In what cases is severance pay paid?

Payment of severance pay upon dismissal is assigned if employment contract is canceled for the following reasons:

1. liquidation of the organization;
2. reduction in the number or staff of the enterprise;
3. conscription for military or alternative service;
4. reinstatement by the court of the employee who previously held it;
5. refusal of another position (for example, upon the onset of disability);
6. employee’s reluctance to move to another locality;
7. drawing up an employment contract with errors made by the employer;
8. change of contract;
9. dismissal of the company director by order of the founders;
10. change of owner and termination of the contract with the manager and other leading specialists.

In case of liquidation of an organization, reduction of number and staff (does not apply to temporary workers), the benefit is assigned in the amount average monthly earnings. The average monthly salary is also paid to those hired under an employment contract drawn up with violations due to the fault of management. Moreover, these conditions do not allow you to move to another job within the same enterprise or continue to work.

In all other cases, two weeks' severance pay is paid upon dismissal.

Cases when a dismissed person loses benefits:

1. the worker violated the work schedule (drunkenness, etc.);
2. the reduction procedure coincided with the probationary period;
3. dismissal due to at will or by agreement of the parties;
4. the employment contract was concluded for 1-2 months.

Upon dismissal for any of the above reasons, he receives all the rest provided by law payments, including wages, vacation pay (if vacation was not used) and so on. Payment occurs the next day after the application.

What does the benefit amount depend on and how is it calculated?

The amount of severance pay upon dismissal depends on the average earnings for billing period. The calculation period in this case is the year preceding the dismissal.

The amount of compensation is calculated according to the formula:

Compensation = average salary x work shifts during the pay period (month).

The accrual of severance pay upon dismissal is consistent with the accepted rules:

1. compensation is accrued only for working days of the period for which it is issued (30 or 14 days);
2. sick leave, vacation pay, benefits, etc. cannot be included in your total annual earnings;
3. The rules for calculating the amount of benefits do not depend on the type of remuneration;
4. the month of dismissal is included in the billing period when the date of dismissal coincides with the last working day of the month; if the dismissal does not occur on the final day of the month, it does not fall into the billing period.

The subsidy is issued on the day of dismissal according to a written order (order) of the manager, issued earlier to justify the reason for dismissal from work.

No additional order is required.

If the day of dismissal is a working day, the settlement, along with severance pay, is paid on the next day. If the employee did not work on the day of dismissal, the payroll must be received no later than the day following the day the employee submitted a demand for payment of money (Article 140 of the Labor Code of the Russian Federation).

Payment of severance pay upon liquidation or layoff

Labor Code Art. 178 secured the right of those dismissed to liquidate or reduce their average monthly earnings during the period of searching for a new position. How this happens in practice.

A person dismissed due to layoff (liquidation) may not immediately find a suitable position, so he is entitled to financial support while looking for a job, but no more than two months from the date of dismissal.

The video below will tell you about the payment of benefits upon dismissal due to staff reduction:

If the employee is not employed after a month, he brings a statement to the previous employer and work book(copy) as proof of absence of work. These documents are enough to receive a second (he received the first on the day of dismissal) payment in the amount of the average monthly salary.

It is also paid after the second month after dismissal if a job is not found. If employment occurs before the end of the second or subsequent months after dismissal, the amount is adjusted in proportion to the days of unemployment of the paid month.

This is done on the basis of an application and a copy of the entry from the work book made by the new employer. It is not necessary to receive payment immediately after moving to a new place. The right is retained for the redundant person for a year.

If the employee has not found a job 3 months after dismissal, he also provides a written statement, a copy of the work book without a record of employment and a certificate from where the dismissed person should have registered as unemployed in the first 2 weeks after dismissal. If he does not do this, there will be no payment for the third month.

For workers in remote areas, benefits are provided for six months after dismissal, subject to timely registration at the labor exchange.

Dismissal benefits by agreement of the parties

The procedure for terminating an employment contract is regulated by Art. 78 Labor Code of the Russian Federation. She explains that such termination can be made at any time if both parties do not object. They sign a termination agreement, which is legal confirmation of the legality of termination by the employee labor activity.

In this case, the employer must indicate what payments and compensation the employee will receive upon dismissal by agreement of the parties (if the receipt is specified in local regulations), as well as the date of their receipt.

Labor Code this question does not regulate. Severance pay upon dismissal by agreement of the parties is accrued on a voluntary basis and depending on the capabilities of the employer. By agreement of the parties, a worker of any category can be dismissed, including pregnant women, people with children, disabled people, etc.

To resign on this basis, it is enough to write a statement (in the employee’s own handwriting) and draw up an agreement (Article 77 of the Labor Code of the Russian Federation). The calculation is made as usual.

The law allows not to pay severance pay. The employer has the right to make the payment on his own initiative or refuse. There will be no penalties for non-payment.

Payments must be paid on the day of dismissal. If the employer decides to provide financial support to the quitter and assigns severance pay, the deadline for its payment is indicated in the text of the previously signed agreement.

Benefit upon voluntary dismissal

An employee may at any time refuse to fulfill an employment contract, that is, resign of his own free will (Article 80 of the Labor Code of the Russian Federation). According to the law, severance pay is not provided for voluntary dismissal. The employee is entitled only to estimated payments accrued according to general rule. This is salary for days worked before dismissal, vacation pay, sick leave benefits, if any.

Sick leave after dismissal

An employee who stops working for an organization has the right to sick pay after dismissal. The legislator stipulates that in the event of loss of ability to work, the employer pays sick leave within 30 days from the date of dismissal (Federal Law No. 255).

Any questions you may have can be asked in the comments to the article.

An employee whose employment contract is terminated has the right to certain compensation. Among other payments, in some circumstances, he may be given severance pay. However, not everyone knows in what cases this amount is due. Questions may also arise regarding the calculation process itself. Knowing all the nuances of calculating payments will help you take advantage of your right to severance pay.

Features of the situation

Severance pay is a lump sum that an employer pays to an employee in the event of his dismissal. The grounds for payment are provided for by the Labor Code of the Russian Federation, as well as internal regulations of companies, collective or labor agreements.

Severance pay is not always paid, but only for certain reasons for dismissal.

The amount of payments also depends on this. A separate order for the release of funds is not required; an order is sufficient, which will record the appropriate grounds for terminating the employment contract.

Reasons for dismissal and amount of payment

The Labor Code of the Russian Federation obliges the employer to transfer severance pay if the contract with the employee is canceled for the following reasons:

1. Liquidation of the organization.
2. Reducing the number (that is, the list of employees) or staff (that is, the composition of positions) of employees of the enterprise.
3. Conscription of an employee to military or alternative service.
4. Reinstatement of an employee who previously performed this activity by decision of the court or labor inspectorate.
5. Refusal to transfer to another location.
6. Refusal to transfer to another job for medical reasons.
7. Recognition of an employee as unable to continue to perform work activities due to his state of health. An official medical report is required.
8. Failure to comply with legal requirements when signing an employment contract due to the fault of the employer. As a result, the possibility of working or moving to another job is excluded. This includes hiring individuals who:
   • by a court decision they were deprived of the opportunity to hold certain positions or perform specific activities;
   • cannot work for medical reasons;
   • do not have a document on education, and according to the law, special knowledge is required in the position they occupy;
   • were deprived of certain rights, expelled from the Russian Federation, dismissed from municipal or civil service;
   • by law do not have the right to engage in any type of labor activity.
9. An employee’s refusal to continue working due to changes in working conditions.
10. The dismissal of a manager is not his fault if the decision is made by the founders.
11. Cancellation of employment contracts with the manager and chief accountant as a result of a change of ownership.

Severance pay for staff reduction and liquidation of an enterprise is paid in the amount of average monthly earnings.

In addition, the dismissed employee during subsequent 2 months receives an average salary. When registering with the employment center, the payment period increases to 3 months. The average monthly salary is due to an employee who was fired due to violation of requirements when concluding a contract. The dismissed manager or chief accountant is paid in the amount 3 average monthly earnings. For other reasons for dismissal, the employee is transferred an amount corresponding to his 2-week average salary.

If an employee was hired by the organization for a period not exceeding 2 months, the amount of deduction is determined by the employment contract or internal regulations. The absence of this clause in the documents exempts the employer from the costs of benefits. Payment of severance pay is not carried out if the employee was dismissed for probationary period, at their own request, for violation of labor discipline.

Calculation of severance pay upon dismissal

Formula

The amount of severance pay is calculated as follows:

Allowance = SDZ * RD

SDZ– is the employee’s average daily salary, RD- this is the number of working days in the period of time that is paid by the organization. Average daily wage is the ratio of total earnings for last year and actual days worked in the same period of time. Calculated using the following formula:

Salary– this is earnings for the billing period (12 months) together with bonuses and remunerations, OD is the number of days worked.

When calculating the amount of severance pay, you should remember some nuances:

• payment applies only to working days, holidays and weekends are not taken into account;
• Social benefits (vacation pay, financial assistance, travel allowance, sick leave and others) are not taken into account;
• if an employee leaves on the last day of the month, this month is included in the calculation period; for the rest of the time, the period up to the month of dismissal should be calculated;
• The amount of the benefit is not affected by the type of remuneration. With salary, piecework, hourly and other systems, the calculation will be the same.

Severance pay is a guaranteed payment.

Regardless of whether the employee found a job immediately after dismissal, he has the right to receive the full amount due to him.

Example

Due to the difficult financial situation, layoffs took place at Ellada OJSC. Among other employees, I. E. Podushkina was fired on March 13, 2019. The woman’s salary was 25,000 rubles. On Podushkina’s last working day, she was supposed to receive wages for the days she worked in March, compensation for vacation and severance pay.

Since the employee worked for less than a full month, March is not included in the benefit calculation. First, you should establish Podushkina’s average daily earnings. For example, in 12 months she worked 240 days:

25,000 rubles * 12 months (billing period) = 300,000 rubles (full annual earnings)

300,000 rubles / 240 days = 1,250 rubles(average salary per day) In April 2019 22 working days.

Hence:

1,250 rubles * 22 days = 27,500 rubles. This is the amount of severance pay.

Taxation and insurance premiums

After all the calculations, the question of whether severance pay is subject to personal income tax and whether insurance premiums are charged on it?

Article 217 of the Tax Code of the Russian Federation states that no “income” tax is levied on the payment if it does not exceed 3 times the average salary. Otherwise, 13% is subtracted from the excess amount. For those who work in the Far North and similar regions, 6 times the average salary is not subject to tax.

The management of an enterprise can pay benefits on personal initiative, the grounds for which are not provided for in the legislation (for example, issuing a certain amount for dismissal to a person who has worked for less than 2 months).

The Treasury Department and the Internal Revenue Service disagree on whether to tax such payments. Instructions from the Ministry of Finance require that personal income tax be deducted from any severance pay within the normal limits (that is, 3 times and 6 times the amount). The Federal Tax Service proposes to levy tax in full on this category of payments.

As for income tax, all expenses of the organization going towards payments to employees must be taken into account when establishing the collection base. This also includes the amount of severance pay. The main condition is that the payment must be secured by law or internal organizational regulations and agreements.

Severance pay listed under the Labor Code is exempt from insurance contributions.

The contribution is calculated only if:

• the employer pays benefits on personal initiative;
• the amount is greater than the limit specified by law (accrual occurs based on the amount of the excess).

Important aspects

Payment procedure

If an employee leaves due to liquidation of the enterprise or layoff, then the issuance of severance pay proceeds as follows:

1. On the last day of work, the employee receives benefits for 1st month. Payment of this amount does not depend on whether the person finds a job in the future or not;
2. Upon completion 1st month from the time of termination of the contract, the company no longer makes any payments to the former employee;
3. At the end 2nd month Average earnings for the period of employment are deducted. The amount is transferred provided that the employee has written an application and presented the employer with a work book that does not contain a note about the new job. For an employee who has found a new job in mid 2nd month, the payment is calculated in proportion to the time of unemployment;
4. After 3rd month The average salary is paid to the employee in the following cases:
   • if he registered with the employment service no later than 2 weeks after dismissal;
   • if for 3 months the employment center was unable to find a job for him.
5. After 4th, 5th, 6th months after the cancellation of the employment contract, the average salary is transferred to those who work in the Far North and equivalent areas. The unemployed must provide the former employer with an application, a work book without a note about the new job, and a conclusion from the employment center on maintaining average earnings.

Payment of benefits due to dismissal due to downsizing or liquidation of a company also depends on who the employer is - an enterprise or self employed. In the second case, benefits are issued only if such a clause was fixed in the employment contract. In other options, the employee receives nothing.

Dismissal of an employee due to disability occurs when he presents an official medical certificate.

After this, the employer takes further steps:

• the employee is offered a position that corresponds to his disability group. If he refuses this option, he is dismissed at his own request, and benefits are not paid;
• if the disability group does not allow you to continue working or there is no suitable job, the employee is fired with payment in the amount of 2 weeks' earnings.

In all other cases, full settlement with the employee, including the transfer of severance pay, occurs on the last working day.

Change in benefit amount

The amounts of severance pay and the grounds on which they are paid are regulated by the Labor Code of the Russian Federation. However, the employer, at his personal request, can change the amount of the benefit and designate special opportunities for payments. Such conditions are prescribed in the internal regulations of the enterprise, as well as in labor or collective agreements. Most often, an organization does not fix a specific value, but a range that includes the number of average monthly earnings or salaries of an employee (for example, a payment in the amount of 4 to 10 average earnings).

Payment of benefits and independent determination of its amount are usually negotiated upon dismissal by agreement of the parties.

The settlement with the employee occurs on his last working day. Receipt of the amount is possible only if the corresponding clause was provided for by the employer and recorded in writing. Thus, the amount of the benefit is regulated at the state level and at the organizational level.

Other payments

Upon termination of the employment contract, the employee, in addition to severance pay, receives other payments. On the last working day the following is transferred to him:

1. Wages. Calculated based on the amount worked in current month days. It includes allowances, bonuses, and additional payments, if provided for by the organization.
2. Compensation for unused vacations. All days that the employee did not take “time off” according to the law are reimbursed, including over the past years. You can replace monetary compensation with vacation, which turns into subsequent dismissal. This requires an application from the employee and the consent of the employer.
3. Compensation for early dismissal. An employee who is fired due to a reduction in the number of employees or the liquidation of a company must be notified about this in advance. 2 months. But there are cases when, with the consent of the employee, he is fired before the warning period has expired. In this case, additional compensation is paid. The amount of such compensation is determined based on the average monthly salary of the dismissed person. It is calculated in proportion to the time remaining until the end of the warning period.
4. Other payments. Intra-organizational acts, collective and labor agreements may provide additional compensation to a dismissed employee. Their list and amounts depend on the organization in which the person works.

Knowing the specifics of calculating severance pay will help both employees and employers. The dismissed employee will be confident that he has received all the payments due to him by law. The employer will fairly pay the work of the former subordinate, thereby retaining him good attitude and its reputation as a reliable and stable company.

Severance pay upon dismissal – special kind compensation paid to employees who vacate their positions on a number of grounds provided for by law.

Under normal conditions, dismissal only entails payment of wages on the last day of work. The benefit provides for additional payments to the employee, which are not taxed.

The provision of severance pay in the amount of average earnings for 2 weeks occurs in connection with dismissal for one of the reasons.

• Relocation of the employer's organization to another location and the employee's refusal to follow it by changing his place of residence.
• Call for mandatory military service in the Russian Armed Forces.
• When reinstating another employee to his current position.
• If it is impossible to continue execution job responsibilities due to medical indications.
• New working conditions are offered, which he refuses.
• Dismissal of an employee employed in seasonal work due to staff reduction.

The amount of payment due to staff reduction is equal to the average salary for 1 month, and if he does not find another job in the near future, then payment occurs for up to 3 months. After this, the employer's obligations end.

An employee hired under a contract whose duration is less than 2 months and dismissed due to staff reduction is not entitled to this type of benefit.

Employees who worked in the Far North and equivalent regions in the event of liquidation of the employer or reduction of staff are paid compensation in the amount of average monthly earnings for 6 months.

Benefit amount and calculations

The payment amount is calculated based on average monthly earnings. Local acts enterprises and the collective labor agreement may establish increased limits of compensation payments.

Many people have a question about how exactly average earnings are calculated. The formula is very simple. To calculate you need to know overall size wages for the previous year or period worked (if the employee has been working for less than a year) and total quantity days worked during this period.

The amount of wages is divided by the number of days worked and the result is the amount of compensation for 1 day. Only working days actually worked are taken into account, excluding various holidays and weekends.

Example. The employee’s salary for the previous year was 300,000 rubles. In fact, he worked 150 working days. 300,000 / 150 = 2,000 rubles costs one working day. Now you need to multiply this figure by the number of working days within 2 weeks. Usually there are 10 such days. 2,000 * 10 = 20,000. Thus, severance pay for two weeks will be 20,000 rubles.

When calculating, it is important to take into account that social benefits are not taken into account when calculating the average salary and the wage system operating in the organization does not affect this in any way.

How to get compensation

The accounting department of the enterprise independently makes the necessary calculations of benefits for the resigning employee. When an employee requires (and has the corresponding right by law) financial support from the employer within 2, 3 (and possibly 4, 5, 6) months from the date of dismissal, he will have to seek help on his own.

Starting from the 4th month, the employer will have to provide the decision of the head of the employment center to maintain the employee’s average earnings at the expense of the organization.

Protection of rights

In practice, abuses by employers often occur. Employees entitled to receive compensation are forced to write resignation letters of their own free will or are unreasonably underestimated in the amount of severance pay upon dismissal.

Don't wait for the situation to change. It is best to immediately seek help from the competent authorities: the prosecutor's office, the labor inspectorate or the court.

Contacting the prosecutor's office or labor inspectorate usually takes at least 30 days, which are necessary to verify the facts stated in the application. After verification, the employer is held accountable and ordered to make all necessary payments.

Can be sent statement of claim to court, however, this is a more complex document in its structure that requires careful legal preparation. Unlike complaints to other authorities, the statement of claim contains references to all necessary regulations and requires the attachment of evidence of the employer’s guilt.

In the case of the labor inspectorate and the prosecutor's office, additional evidence is not needed - during the inspection, the facts will be confirmed or refuted by the official.

To receive severance pay, you do not need to take any additional actions. You will need to submit an application to the employer only if you have the right to retain your wages for a period longer than 1 month.

When an employee is dismissed, the employer becomes obligated to pay him severance pay. Most of such cases are listed in Article 178 of the Labor Code of the Russian Federation.

The legislator has established different amounts of such benefits - from two weeks' average earnings and above. We will consider cases of their payment in this order.

Two-week average earnings in connection

With medical certificate

Upon termination of an employment contract due to the recognition of an employee as completely incapable of work in accordance with a medical certificate issued in the manner established federal laws and other regulatory legal acts of the Russian Federation (clause 5, part 1, article 83 of the Labor Code of the Russian Federation), the employer, by virtue of paragraph 6 of part 3 of article 178 of the Labor Code of the Russian Federation, is obliged to pay the employee severance pay in the amount of two weeks’ average earnings.

The issue of permanent disability is resolved by medical and social examination institutions (federal bureau of medical and social examination, main bureau of medical and social examination, bureau of medical and social examination in cities and regions that are branches of the main bureaus).

If an employee is diagnosed with disability group I with a third degree limitation in the ability to perform labor activities, he is completely incapacitated. Group I is established when disorders of the body’s functions are so significantly expressed that the individual is not only really unable to continue working, but also in everyday life needs outside help.

When issuing an order to terminate an employment contract on this basis, an economic entity can use either an independently developed form or a unified form No. T-8. In the “Bases” column the details of the disability certificate are indicated.

Last day of work of a disabled employee is considered to be the day preceding the day the disability group is established. The date of establishment of disability is the day from which a person recognized as disabled becomes entitled to an appropriate social pension.

An entry on the basis and reason for termination of the employment contract, entered into the work book, must be made in strict accordance with the wording of the Labor Code of the Russian Federation with reference to the article, part of the article, paragraph of the article of the code (part 5 of article 84.1 of the Labor Code of the Russian Federation, clause 14 of the Rules of Maintenance and storage of work books, production of work book forms and provision of them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225). In the case under consideration, the following is entered in the work book: “The employment contract was terminated due to the recognition of the employee as completely disabled in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts Russian Federation, paragraph 5 of part one of Article 83 Labor Code Russian Federation".

The entry on the termination of the employment contract is certified by the signature of the employee responsible for maintaining work books, the seal of the employer and the signature of the dismissed employee (clause 35 of the rules for maintaining work books).

An entry is made into the personal card (when using unified forms - form No. T-2) about the termination of the employment contract in connection with the recognition of the employee as completely disabled in accordance with a medical report.

The work book is issued to the employee on the day of termination of the employment contract (Part 4 of Article 84.1 of the Labor Code of the Russian Federation). Upon receipt, the employee must sign the personal card and the book for recording the movement of work books and inserts in them (clause 41 of the rules for maintaining work books).

An employee who is recognized as completely incapable of working in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, as mentioned above, is paid severance pay in the amount of two weeks' average earnings.

The procedure for calculating the average salary, which is also used when determining the amount of severance pay, is provided for in Article 139 of the Labor Code of the Russian Federation. The regulation on the specifics of the procedure for calculating average wages (approved by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922) clarified certain aspects of its calculation.

In any mode of operation, the average salary of an employee is calculated based on the salary actually accrued to him and the time actually worked by him for the 12 months preceding the moment of payment. The collective agreement may also provide for other periods for calculating average wages, if this does not worsen the situation of employees.

To calculate the average salary, all types of payments provided for by the remuneration system and applied by an economic entity are taken into account, regardless of the sources of these payments. The charges listed in paragraph 5 of the above-mentioned provision are not taken into account in the calculation. At the same time, the time for which such accruals were made is not taken into account.

Average daily earnings are calculated by dividing the amount of wages actually accrued for the billing period by the number of days actually worked during this period. The average employee’s earnings are determined by multiplying the average daily earnings by the number of days (calendar, working) in the period subject to payment. To determine the amount of severance pay, it is necessary to multiply the average daily earnings by the number of working days in the period subject to payment (decision of the Supreme Court of the Russian Federation dated May 25, 2006 No. GKPI06-366).

Severance pay is paid to the employee upon final payment on the day of his dismissal.

The employee was dismissed on September 6, 2016 due to circumstances beyond the control of the parties - the employee was declared completely unable to work in accordance with a medical report. The organization has a five-day work week. In the billing period (September 2015 - August 2016), the accrued amount of income taken into account when calculating the average salary was 215,689 rubles, the number of days worked in the billing period was 144.

The average daily earnings of an employee is 1,497.84 rubles/day. (RUB 215,689: 144 days). The employee is entitled to receive severance pay in the amount of two weeks' average earnings for the period from September 7 to September 20. This period accounts for 10 working days according to the five-day calendar working week. Based on this, its amount is 14,978.40 rubles. (1497.84 rubles/day × 10 days).

Payment of all amounts due to the employee in the final payment (wages for 4 working days, compensation for unused vacation days (Article 127 of the Labor Code of the Russian Federation), severance pay) is made on the day of termination of the employment contract, that is, on the day of dismissal (clause 1 of Art. 140 Labor Code of the Russian Federation) September 6.

Let us note that when an employee is diagnosed with disability group II or III with a limitation of the ability to perform work activities of the second or first degree, the employer should find out what specific restrictions on work this employee has and whether he can perform work in accordance with his position. To do this, you need to familiarize yourself with the individual rehabilitation and habilitation program for a disabled person (the document form is approved by order of the Ministry of Labor of Russia dated July 31, 2015 No. 528n).

The specified individual program is mandatory for execution by organizations of all forms of ownership (Article 11 of the Federal Law of November 24, 1995 No. 181-FZ “On social protection disabled people in the Russian Federation").

The employer does not have the right to allow the employee to continue his previous work if such work is contraindicated for him. According to Article 73 of the Labor Code of the Russian Federation, an employee who, in accordance with a medical report, needs to be transferred to another job, with his written consent, the employer is obliged to transfer to another available job that is not contraindicated for this employee for health reasons. If the employee refuses the transfer or the employer does not have such work, the employment contract is terminated in accordance with clause 8 of part 1 of Article 77 of the Labor Code of the Russian Federation. And in this case, the employer must pay two weeks of severance pay (paragraph 2, part 3, article 178 of the Labor Code of the Russian Federation).

Conscription for military service

When labor relations are terminated in connection with the employee’s conscription for military service or his assignment to an alternative civilian service replacing it (clause 1 of Article 83 of the Labor Code of the Russian Federation), the dismissed person is also paid severance pay in the amount of two weeks’ average earnings (paragraph 3, part 3 of Art. 178 Labor Code of the Russian Federation).

The labor legislation of the Russian Federation does not contain instructions on the period for termination of an employment contract on grounds related to conscription for military service (direction to alternative civilian service). It is logical to believe that the employment contract should not be terminated later date specified in the summons for the employee to appear at the military registration and enlistment office to be sent to the place of military service. In this case, the day of termination of the employment contract is the last day of work of the employee. At the same time, the employee can independently determine the last day of work by indicating it in the resignation letter.

To terminate an employment contract on this basis, the employer issues an appropriate order upon presentation by the employee of a summons from the military commissariat for conscription into active military service or enlistment. Armed Forces RF.

If an employee is called to perform alternative civil service, then the reason for his dismissal will be the order presented by the employee to leave for the location of the alternative civil service. This instruction specifies the deadline by which the employee must appear to perform alternative civil service (Article 14 of the Federal Law of July 25, 2002 No. 113-FZ “On Alternative Civil Service”).

The employee presented a summons from the military registration and enlistment office to appear at the recruiting station on June 8, 2016 for military service. At the same time, he submitted his resignation effective June 6. The collective agreement establishes:

calculation period for calculating average earnings, including when paying severance pay when an employee is called up for military service, different from that established by the labor legislation of the Russian Federation: 3 calendar months preceding the month of the occurrence of an event related to the calculation of average earnings;

the amount of severance pay upon dismissal due to conscription for military service is the average monthly salary.

For March, April and May, the dismissed person was accrued 31,800, 59,600 and 32,300 rubles. He worked these months completely. The average daily earnings using the total duration of the billing period (12 months) amounted to 1983.69 rubles/day.

In the billing period, the employee worked 61 days. (21 + 21 + 19), where 21, 21 and 19 are the number of working days in March, April and May. Therefore, his average daily earnings are 2027.87 rubles/day. ((RUB 31,800 + RUB 59,600 + RUB 32,300) : 61 days). Since this value exceeds the amount of average daily earnings calculated in accordance with the Labor Code of the Russian Federation (2027.87 > 1983.69), it is this value that is used when determining average earnings.

For the period from June 9 to July 8 there are 21 working days (15 working days in June and 6 working days in July), then the required amount of severance pay is 42,585.27 rubles. (RUB 2,027.87/day × 21 days).

The final payment to the employee includes:

wages for actual time worked in June - 4 working days;

compensation for all unused vacations. In this case, the employee is entitled to full compensation (for 28 calendar days), if the duration of the employee’s working year at the time of his dismissal exceeded 5.5 months (clause 28 of the Rules on regular and additional leaves, approved by Decree of the People’s Commissar of the USSR dated April 30, 2030 No. 169);

severance pay in the amount of RUB 42,583.27.

Please note that upon dismissal due to an employee’s conscription for military service, the employee cannot be deducted sums of money for unworked days of annual paid leave used in advance (paragraph 6 of article 137 of the Labor Code of the Russian Federation).

The labor legislation of the Russian Federation provides for the payment of severance pay in the amount of two weeks' average earnings also upon dismissal due to (paragraphs 4, 5 and 7, part 3, article 178 of the Labor Code of the Russian Federation):

with the employee’s refusal to be transferred to another location together with the employer (clause 9, part 1, article 77 of the Labor Code of the Russian Federation);
the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (clause 7, part 1, article 77 of the Labor Code of the Russian Federation);
with the reinstatement of the employee who previously performed this work (clause 2 of Article 83 of the Labor Code of the Russian Federation).

The employment contract is subject to termination in connection with the reinstatement of the employee who previously performed this work, if the dismissed:

was reinstated to his previous job by decision state inspection labor, court, higher authority;
in connection with illegal conviction or illegal involvement in criminal liability demanded reinstatement to his previous job on the basis of the entry into force of an acquittal or the issuance of a resolution (ruling) to terminate the criminal case for the absence of an event or corpus delicti or for lack of proof of his participation in the commission of the crime.

An employment contract on this basis is terminated only if it is impossible to transfer the employee with his consent to another job (Article 83 of the Labor Code of the Russian Federation). Thus, severance pay is paid upon termination labor relations only after the employer offered the employee another job or he simply did not have another job for this employee.

The employer must pay severance pay in the amount of two weeks' average earnings also when dismissing persons employed in seasonal work, if such dismissal is carried out in connection with a reduction in the number or staff of the organization's employees (Article 296 of the Labor Code of the Russian Federation).

Average earnings

One of the general grounds for termination of an employment contract is a violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation or other federal law, if this violation precludes the possibility of continuing work. In Article 84 of the Labor Code of the Russian Federation, the legislator provided a list of such cases. Among them:

concluding an employment contract in violation of a court verdict depriving a specific person of the right to occupy certain positions or engage in certain activities;
concluding an employment contract to perform work that is contraindicated for a given person for health reasons in accordance with a medical report;
lack of an appropriate education document if the work requires special knowledge in accordance with federal law or other regulatory legal acts;
conclusion of an employment contract in violation of:

decisions of a judge, body, official authorized to consider cases of administrative offenses, disqualification or other administrative punishment, excluding the possibility of the employee fulfilling his duties under the employment contract;

restrictions, prohibitions and requirements established by federal laws regarding the involvement in work of citizens dismissed from state or municipal service;

restrictions established by the Labor Code of the Russian Federation and other federal laws on engaging in certain types of labor activity.

If the head of an economic entity, knowing about existing restrictions for hiring of this person, nevertheless concluded an employment contract with him, and subsequently terminates the employment relationship in accordance with paragraph 11 of Article 77 of the Labor Code of the Russian Federation, then the employer is obliged to pay the dismissed person severance pay in the amount of average monthly earnings (Part 3 of Article 84 of the Labor Code of the Russian Federation).

Deprivation of a specific person of the right to occupy certain positions or engage in certain activities in accordance with Article 47 of the Criminal Code of the Russian Federation consists of prohibiting:

hold positions:

in the public service;

in local governments;

engage in certain professional or other activities.

This punishment is established for a term of one to five years as the main one and for a term of six months to three years as an additional

In order for the termination of an employment contract to be legal, the employer must have a court verdict that has entered into force against a specific employee. The sentence is considered to have entered into force if:

the period for appeal has expired or
this verdict was recognized as legal and justified by the court of cassation.

If, at the time of detection of a violation of the sentence, the period for which the employee was deprived of the right to occupy certain positions has expired, the employment contract cannot be terminated on the grounds that the rules for its conclusion were violated, since this circumstance no longer excludes the continuation of work.

In some cases, when hiring, an employee must undergo a preliminary medical examination (these cases are established by the Labor Code of the Russian Federation and other federal laws). Thus, employees engaged in work with hazardous or hazardous substances must undergo a medical examination. hazardous conditions labor, underground work, work related to traffic, and minors.

Preliminary medical examinations are carried out to determine the suitability of candidates to perform the assigned work and to prevent occupational diseases (Article 213 of the Labor Code of the Russian Federation). Before concluding a contract, the employer must make sure that the applicant he accepts can be allowed to work and this work is not contraindicated for health reasons.

If, after concluding the contract, it is revealed that the work envisaged by it is contraindicated for the employee for health reasons (and this is certified by a medical certificate issued in the prescribed manner), the employment contract is subject to termination.

To justify termination of an employment contract, the employer must have confirmation of the presence medical contraindications to perform the work specified in the employment contract, precisely at the time of acceptance. If this fact identified as a result of the employee undergoing a periodic medical examination, then dismissal will be carried out on another basis - due to circumstances beyond the will of the parties (clause 5, part 1, article 83 of the Labor Code of the Russian Federation).

As you can see, the basis for dismissal can only be a medical report - no certificate will be suitable for this.

An employment contract is terminated due to a violation of the rules for its conclusion established by the Labor Code of the Russian Federation or other federal law, if violation of these rules excludes the possibility of continuing work in the event of concluding a contract in the absence of an appropriate document on education and (or) qualifications, if the performance of work requires special knowledge in accordance with federal law or other regulatory legal act.

One of the documents presented when concluding an employment contract is a document on education and qualifications or the presence of special knowledge (Article 65 of the Labor Code of the Russian Federation). This document is required if the job for which the applicant is applying requires special knowledge or training.

Persons who have successfully passed the final certification or state final certification, in accordance with paragraphs 3 and 4 of Article 60 of the Federal Law of December 29, 2012 No. 273-FZ “On Education in the Russian Federation,” are issued educational documents or documents on education and qualifications.

Accordingly, an employee can confirm the level of necessary knowledge with a diploma, certificate and other documents (for example, a specialist certificate).

Note that dismissal due to the lack of an education document from a position for which its availability is provided only by local regulations or job description, and not federal laws or other regulations, is illegal.

Checking the disqualification of persons hired for positions of executives in an organization is a mandatory procedure. When concluding an employment agreement (contract), the employer must request information about the presence of disqualification of an individual from the body maintaining the register of disqualified persons. Such a register is formed and maintained by the Tax-Service Federal Institution of the Federal Tax Service of Russia (clause 2 of the order of the Federal Tax Service of Russia dated December 19, 2011 No. ММВ-7-6/941).

More than average earnings

A special case for an employer is the termination of an employment contract in connection with the liquidation of an organization (clause 1 of Article 81 of the Labor Code of the Russian Federation) or a reduction in the number or staff of the organization’s employees (clause 2 of Article 81 of the Labor Code of the Russian Federation). In these cases, the dismissed employee is paid severance pay in the amount of average monthly earnings, and he also retains his average monthly earnings for the period of employment (Part 1 of Article 178 of the Labor Code of the Russian Federation). There are two restrictions:

this period cannot exceed two months from the date of dismissal;
the total amount of the retained average monthly earnings of the dismissed person takes into account the payment of severance pay.

The average salary for the period of employment is retained by the dismissed employee only if he has not entered into an employment relationship with a new employer. That is, in order for a dismissed person to be paid the average monthly salary for the period of employment for the second month, he must confirm that he did not work during this period. The confirmed document may be a work book that does not contain a record of new employment.

In exceptional cases, the average monthly salary is retained by the dismissed employee for another third month from the date of dismissal. This is carried out by decision of the employment service body, provided that the employee applied to the specified body for employment within two weeks after dismissal (Part 2 of Article 178 of the Labor Code of the Russian Federation). Thus, in order to receive an average salary, the dismissed person will need to provide his former employer with a work record book and a certificate from the employment service agency.

After the dismissal of an employee, the average monthly salary retained for the period of employment is paid on the days that wages are issued in the given organization.

An employee of the organization was dismissed due to staff reduction on August 31, 2016. His average daily earnings are 1,527.36 rubles/day.

The amount of severance pay will be RUB 33,601.92. (1527.36 rubles/day × 22 days), where 22 is the number of working days in September. This amount, as well as wages for August and compensation for unused vacation (if there are earned vacation days) will be included in the final settlement with the employee. The amount due for handout is paid on August 31st.

If a dismissed employee does not find a job by November 1, he can apply to the organization to receive an average salary. To do this, the former employee must present a work record book. Since there are 21 working days in October, the average earnings will be 32,074.56 rubles. (1527.36 rubles/day × 21 days).

If an employee is unemployed before December 1, he or she can count on another amount of average earnings. But for this, in addition to submitting a work record book, you will need to submit a certificate from the employment service department, which he should have been registered with before September 14. If such a certificate is available, the dismissed employee will be paid the same 32,074.56 rubles. (1527.36 rubles/day × 21 days), since November also has 21 working days.

For certain categories of employees, the labor legislation of the Russian Federation establishes different amounts of severance pay and terms for maintaining average monthly earnings upon dismissal in connection with the liquidation of the organization or a reduction in the number or staff of the organization's employees.

Thus, employees with whom an employment contract was concluded for a period of up to two months are not paid severance pay (Article 292 of the Labor Code of the Russian Federation). For seasonal workers, severance pay, as mentioned above, is paid in the amount of two weeks' average earnings (Article 296 of the Labor Code of the Russian Federation).

For these reasons, workers released from organizations located in the Far North and equivalent areas are entitled to severance pay in the amount of average monthly earnings. He also retains his average monthly salary for the period of employment, but not more than three months from the date of dismissal (including severance pay).

In exceptional cases, the average monthly salary is retained by the specified employee for the fourth, fifth and sixth months from the date of dismissal by decision of the employment service body, provided that within a month after dismissal the employee applied to this body and was not employed by it.

The administration of the organization located in Vorkuta dismissed an employee on August 31, 2016 due to staff reduction. Payment of wages in the organization is carried out on the last day of the month.

On this day, at the final settlement, he was paid: wages for August, severance pay in the amount of average monthly earnings, compensation for unused vacation - and was given a work book.

Since the organization is located in the Far North, the dismissed person retains the average salary for the period of employment, but not more than six months, taking into account the monthly severance pay.

If a dismissed employee does not find a job before March 1, 2017, then on the last working day of each month starting from October 31, he has the right to apply to the organization to receive average earnings. To do this, he will need to submit a work book as confirmation of the fact that he has not concluded a new employment contract, and in December, January and February - also a certificate from the employment service about his non-employment at the time of its issuance with information about his registration before September 30.

In accordance with the above-mentioned paragraph 2 of Article 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer if the number or staff of the organization’s employees is reduced. At the same time, employees are warned by the administration personally and against receipt of the upcoming dismissal due to a reduction in the number or staff of the organization’s employees at least two months before the dismissal (Part 2 of Article 180 of the Labor Code of the Russian Federation).

The employer, with the written consent of the employee, has the right to terminate the employment contract with him without notice of dismissal two months in advance, with simultaneous payment of additional compensation in an amount calculated in proportion to the time remaining before the expiration of the notice of dismissal (Part 3 of Article 180 of the Labor Code of the Russian Federation).

From a literal reading of this provision, it follows that termination of an employment contract with the consent of the employee (executed in writing) without appropriate notice of dismissal (two months in advance) is the right of the employer, and not his obligation. Therefore, the employer can either use it or not resort to it.

If the employer is nevertheless inclined to use this right, then he must himself offer the employee to terminate the employment contract to reduce the number or staff of the organization’s employees without two months’ notice, having secured the employee’s written consent to such termination of the relationship.

The additional monetary compensation provided for by the mentioned norm is mandatory, since it actually represents compensation to the employee for earnings lost due to early dismissal. Consequently, the payment of the specified monetary compensation does not relieve the employer from the obligation to pay the dismissed employee all payments provided for in Article 178 of the Labor Code of the Russian Federation, namely:

severance pay in the amount of average monthly earnings;
average monthly earnings for the second and third months after dismissal in case of non-employment before their end (for the third month - upon provision of a certificate from the employment service department).

The organization has been reducing staff since August 31, 2016. Employees were warned about this on June 27. Moreover, all of them were asked to terminate the contract without two months’ notice. One of the employees gave written consent to such dismissal from July 15. His average daily earnings are 1967.15 rubles/day.

wages for 11 working days worked in July;

compensation for dismissal without two months' notice, determined in proportion to the time remaining before the expiration of the notice of dismissal. For the period from July 16 to August 31 of the current year there are 33 jobs. days (10 + 23), where 10 and 23 are the number of working days in July and August. Then the required value is 64,915.95 rubles. (1967.15 rubles/day × 33 days);

severance pay paid in connection with staff reduction - 43,277.30 rubles. ((1769.15 rubles/day × 22 days), where 22 is the number of working days in September);

compensation for unused vacation (if there are earned vacation days).

If a dismissed employee does not get a job before November 1, then he can apply to the organization to receive an average salary, presenting a work book as a supporting document. The amount of average earnings is 41,310.15 rubles. ((1967.15 rubles/day × 21 days), where 21 is the number of working days in October).

If an employee does not find a job before December 1, then he can also contact the organization to receive average earnings. The accounting department pays the amount due to him, provided that the dismissed employee:

submitted a work book and a certificate from the employment service department.

And this time he is entitled to the same 41,310.15 rubles. (1967.15 rubles/day × 21 days), since November also has 21 working days.

Please note that for other employees, their last working day is August 31. And from this date, two and three months are counted, for which the payment of average earnings is due if they are not employed during this period.

The legislator in the Labor Code of the Russian Federation has established several more norms obliging employers to pay compensation to those dismissed. One of them concerns the head of the organization, his deputies and the chief accountant who are dismissed by the new owner. If the new owner decides to terminate employment contracts with these employees, then he is obliged to pay them compensation in the amount of no less than three times the employee’s average monthly earnings (Article 181 of the Labor Code of the Russian Federation).

If it is impossible to provide the corresponding job (position) at the previous place of work:

successor (in case of reorganization of the organization);
All-Russian (interregional) trade union (in case of liquidation of the organization) -

retain for this employee his average earnings for the period of employment, but not more than six months, and in the case of study or retraining - for a period of up to one year (Article 375 of the Labor Code of the Russian Federation and Article 26 of the Federal Law of January 12, 1996 No. 10-FZ " On trade unions, their rights and guarantees of activity”).

An employment contract or collective agreement may provide for other cases of payment of severance pay, as well as establish increased amounts of severance pay (Part 4 of Article 178 of the Labor Code of the Russian Federation).

Taxation issues

When determining the tax base for income tax, labor costs include accruals for dismissed employees, including in connection with the reorganization or liquidation of the taxpayer, reduction in the number or staff of the taxpayer’s employees (clause 9 of Article 225 of the Tax Code of the Russian Federation). For the purposes of the aforementioned paragraph 9 of Article 255 of the Tax Code of the Russian Federation, accruals to dismissed employees are recognized, in particular, severance payments made by the employer upon termination of the employment contract, provided for by employment contracts and (or) separate agreements of the parties to the employment contract, including agreements on termination of the employment contract, and Also collective agreements, agreements and local regulations containing labor law standards.

The above version of the norm of paragraph 9 of Article 255 of the Tax Code of the Russian Federation came into force on January 1, 2015 (subparagraph “a”, paragraph 16, article 2, paragraph 1, article 4 of the Federal Law of November 29, 2014 No. 382-FZ “On Amendments to parts one and two Tax Code Russian Federation").

The possibility of taking into account, from January 1, 2015, accruals to dismissed employees, in particular, severance pay made by the employer upon termination of the employment contract, provided for by employment contracts and (or) separate agreements of the parties to the employment contract, including agreements on termination of the employment contract, as well as collective agreements, agreements and local regulations containing labor law standards in expenses when determining the taxable base for income tax were confirmed by the Ministry of Finance of Russia in letter dated January 14, 2016 No. 03-03-06/2/683.

Thus, all accrued amounts of severance pay and retained average earnings in examples 1–5 are included in labor costs taken into account for tax purposes.

Amounts of payments associated with dismissal (clause 3 of Article 217 of the Tax Code of the Russian Federation):

in the form of severance pay and
average monthly earnings for the period of employment, -

are not exempt from personal income tax to the extent that generally exceeds three times the average monthly salary (six times for workers dismissed from organizations located in the Far North and equivalent areas). This rule also applies to compensation to the manager, deputy managers and chief accountant of the organization.

It follows from this that the amount of these payments in the part not exceeding the specified limit value, is exempt from taxation.

The fact that compensation payments related to the dismissal of employees, which include severance pay and the amount of average monthly earnings paid in accordance with Article 178 of the Labor Code of the Russian Federation, are exempt from income tax individuals on the basis of paragraph 3 of Article 217 of the Tax Code of the Russian Federation in a total amount not exceeding in general three times the average monthly earnings (six times the average monthly earnings for workers dismissed from organizations located in the regions of the Far North and equivalent areas), confirmed by the Ministry of Finance of Russia in letters dated 02.12.16 No. 03-04-06/7581, dated 02.12.16 No. 03-04-06/7535. Amounts exceeding three times the amount (six times the amount) of the average monthly earnings are subject to personal income tax in accordance with the established procedure.

In this regard, financiers explained that for the purposes of applying the specified paragraph 3 of Article 217 of the Tax Code of the Russian Federation, it is necessary to sum up all payments made to an employee upon dismissal, with the exception of compensation for unused vacation.

Let us remind you that compensation for unused vacation is not exempt from personal income tax due to the same paragraph 3 of Article 217 of the Tax Code of the Russian Federation.

In letter No. 03-04-06/7535 it is clarified that the amount exempt from personal income tax must take into account additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice period for dismissal, paid in accordance with Article 180 of the Labor Code of the Russian Federation .

Continuation of example 5

Let us clarify the condition: the employee registered with the employment service department on July 25; he did not find a job until December 1.

Due to the fact that the employee was not employed until December 1, 2016, the total amount of payments associated with his dismissal due to staff reduction amounted to RUB 190,813.55. (64,915.95 + 43,277.30 + 41,320.15 + 41,310.15).

Exempt from taxation personal income tax in a total amount not exceeding three times the average monthly salary. The employee's last day of work was July 15. For the period from July 16 to October 15 there are 65 slaves. days ((10 + 23 + 22 + 10), where 10, 23, 22 and 10 are the number of working days in July, August, September and October). Consequently, the amount of 127,864.75 rubles is exempt from personal income tax. (1967.15 rubles/day × 65 days). The difference between the paid income and this amount is 62,948.80 rubles. (190,813.55 – 127,864.75) is included in the taxable income of the dismissed employee.

Moreover, it is included in parts in October and November: in November the entire accrued amount of 41,310.15 rubles is taken into account, in October - 21,638.65 rubles. ((1967.15 rubles/day × 11 days) = (62,948.80 – 41,310.15)).

Consequently, the employee was paid:

RUB 38,497.15 ((41,310.15 – 2813), where 2813 rub. ((A rub. + 21,638.65 rub.) × 13% – A rub. × 13%) is the withheld amount of personal income tax in October, A rub. and ( A rub. × 13%) - the size of the taxable base for personal income tax and the withheld amount of personal income tax as of October 1) - in October;

RUB 35,910.15 ((41,310.15 – 5370), where 5370 rub. (A rub. + 21,638.65 rub. + 41,310.15 rub.) × 13% – (A rub. × 13% + 2813) - amount withheld Personal income tax) - in November.

A limitation on the non-taxable amount in the amount of three (six times) average monthly earnings was introduced into paragraph 3 of Article 217 of the Tax Code of the Russian Federation from January 1, 2012 by Federal Law of November 21, 2011 No. 330-FZ “On Amendments to Part Two of the Tax Code of the Russian Federation, Article 15 of the Law of the Russian Federation “On the status of judges in the Russian Federation” and the recognition as invalid of certain provisions of legislative acts of the Russian Federation” (subparagraph “a”, paragraph 7 of article 1).

Judicial panel Supreme Court The Komi Republic, in its ruling dated May 10, 2012 No. 33-1663AP/2012, indicated that the additional compensation provided for in Part 3 of Article 180 of the Labor Code of the Russian Federation is not mentioned in the above-mentioned Law No. 330-FZ. From this, the judges concluded that the additional compensation provided for in Part 3 of Article 180 of the Labor Code of the Russian Federation, paid after January 1, 2012, is not subject to personal income tax.

The provisions of the mentioned norm of paragraph 3 of Article 217 of the Tax Code of the Russian Federation, in the opinion of financiers, apply regardless of the grounds on which the dismissal is made.

For the purpose of applying the considered paragraph 3 of Article 217 of the Tax Code of the Russian Federation, all payments of severance pay and retained earnings made in connection with the dismissal of an employee of the organization are taken into account in total, including if these payments are made in different tax periods (letter of the Ministry of Finance of Russia dated 07.04 .14 ​​No. 03-04-06/15454).

End of example 4

Despite the fact that severance pay and retained earnings payments occur in two different tax periods - 2016 and 2017, the total amount paid from August to February is compared with a maximum of six times the average monthly earnings.

An identical norm for limiting the non-taxable set of payments related to the dismissal of an employee, insurance contributions to the Pension Fund of the Russian Federation, the Federal Social Insurance Fund of Russia and the Federal Compulsory Medical Insurance Fund, as well as to the Social Insurance Fund of Russia for “injuries” is available in federal laws:

dated July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Mandatory Fund health insurance"(subparagraph 2 "d" paragraph 1 of article 9) and
dated July 24, 1998 No. 125-FZ “On mandatory social insurance from accidents at work and occupational diseases” (paragraph 8, paragraph 2, article 20.2).

The Ministry of Labor of Russia in letter No. 17-4/B-508 dated October 14, 2015 indicated that if the severance pay paid to an employee, provided for in an employment contract (additional agreement to it), does not exceed three times the employee’s average monthly earnings, then insurance premiums for such payment are not credited.

The management of the FSS of Russia in the clarification “On the imposition of insurance premiums on certain types of payments” (provided in the appendix to the letter of the FSS of Russia dated April 14, 2015 No. 02-09-11/06-5250) explained that all compensation payments related to the dismissal of workers (weekends benefits, compensation, average monthly earnings for the period of employment) regardless of the grounds on which dismissal is made, accrued after January 1, 2015, are exempt from insurance contributions in an amount not exceeding in general three times the average monthly earnings or six times the average monthly earnings for workers dismissed from organizations located in the Far North and equivalent areas (question 1).

End of example 5

When paying the maintained average earnings in October, part of it, 21,638.65 rubles, is taken into account when determining the taxable base when calculating insurance premiums to the Pension Fund of Russia, the Federal Compulsory Medical Insurance Fund and the Social Insurance Fund of Russia, including for “injuries.”

The calculated amount of retained earnings for November is included in its entirety in the base for calculating insurance contributions to the Pension Fund of Russia, the Federal Compulsory Medical Insurance Fund and the Social Insurance Fund of Russia, including for “injuries.”

An entry on the basis and reason for termination of the employment contract, made in the work book, must be made in strict accordance with the wording of the Labor Code of the Russian Federation with reference to the article, part of the article, paragraph of the article of the code.

The work book is issued to the employee on the day of termination of the employment contract (Part 4 of Article 84.1 of the Labor Code of the Russian Federation).

When an employee is diagnosed with disability group II or III with a limitation in the ability to perform work activities of the second or first degree, the employer should find out what specific restrictions on work this employee has and whether he can perform work in accordance with his position.

To terminate an employment contract on grounds related to conscription for military service, the employer issues an appropriate order upon presentation by the employee of a summons from the military commissariat for conscription to active military service or enlistment in the Armed Forces of the Russian Federation.

Upon dismissal in connection with an employee's conscription for military service, amounts of money cannot be withheld from the employee for unworked days of annual paid leave used in advance (paragraph 6 of Article 137 of the Labor Code of the Russian Federation).

In order for the termination of an employment contract to be legal, the employer must have a court verdict that has entered into force against a specific employee.

Before concluding a contract, the employer must make sure that the applicant he accepts can be allowed to work and that this work is not contraindicated for him due to health reasons.

Dismissal due to the lack of an education document from a position for which its availability is provided only by local regulations or job descriptions, and not by federal laws or other regulations, is illegal.

Payment of severance pay in the amount of the average monthly earnings and the maintained average monthly earnings is made by the employer at the previous place of work at the expense of this employer (Article 318 of the Labor Code of the Russian Federation).

Termination of an employment contract with the consent of the employee (executed in writing) without appropriate notice of dismissal (two months in advance) is the right of the employer, and not his obligation. Therefore, the employer can either use it or not resort to it.

An employee who is released from work in an organization in connection with his election to an elective position in the trade union body of this organization, after the end of his term of office, must be provided with his previous job (position), and in its absence, with the consent of the employee, another equivalent job (position) in that same organizations.

When determining the tax base for income tax, labor costs include accruals for dismissed employees, including in connection with the reorganization or liquidation of the taxpayer, reduction of the number or staff of the taxpayer's employees.

Compensation for unused vacation is not exempt from personal income tax due to the same paragraph 3 of Article 217 of the Tax Code of the Russian Federation.

Additional compensation provided for in Part 3 of Article 180 of the Labor Code of the Russian Federation, paid after January 1, 2012, is not subject to personal income tax.

If the severance pay paid to the employee, stipulated by the employment contract (additional agreement thereto), does not exceed three times the employee’s average monthly earnings, then insurance premiums for such payment are not charged.

Evgeniy PETROV, tax consultant

If for some reason an employee moves to another job, then he has the right to count on some cash payments. Severance pay upon dismissal of an employee is provided in individual cases or reflected in the employment contract. The Labor Code does not define the exact procedure for making payments, so this issue often causes difficulties. So that the employer and employee can avoid misunderstandings, it is worth studying in detail the rules for processing payments in different circumstances.

What is severance pay

On the day of dismissal, the employer fully pays the employee. A salary is issued for all time worked, compensation for unused vacation days and a one-time severance pay in the amount of 2 weeks’ wages or more - depending on the situation. The grounds are contained in the relevant article of labor legislation or provided for by the company's regulations, collective/employment agreement. The right to payment and its amount are determined taking into account the situation. For issuance cash an order with a fixed basis is required.

In what cases is severance pay paid?

Average monthly earnings for the period of employment must remain for two months after the employee’s dismissal. Sometimes the period is extended to 90 days by decision of the employment service. You can receive payment upon dismissal in the following cases:

1. The employee refused to move to another job due to the lack of a suitable position with the employer or for medical reasons.
2. The employee refused to move with the employer to another area.
3. The employee has received a disability and therefore cannot perform his duties.
4. The employee refused to work at the company due to changes in the employment agreement.
5. Calling a worker into the ranks Russian army.
6. Another permanent employee returned to work (for example, from maternity leave), and the temporary employee was hired as a replacement and is subject to dismissal.
7. Severance pay upon dismissal is provided for in the employment contract.
8. The company is undergoing a reorganization, so the number of staff is being reduced.
9. The employer's company is subject to liquidation.

Payments upon dismissal by agreement of the parties

If termination of cooperation occurs by mutual consent, the employee receives payment. By agreement of the parties, severance pay may include compensation for unused vacation days, wages for time worked, bonuses, etc. Other payments not reflected in regulations or in the employment agreement are also allowed, at the discretion of the employer.

As a rule, in this case, upon dismissal, the employee should be entitled to compensation, since the initiator of the dismissal, by agreement of the parties, is the employer. However, employees should be careful about such offers. Often, dismissal begins in connection with the imminent liquidation of the enterprise, and employers, by offering an agreement, try to save on payments.

Upon dismissal due to disability

If an employee is recognized as disabled by a medical commission, he must provide the employer’s accountant with a corresponding certificate. After this, the company can offer him another, corresponding position. If an employee refuses, the employment relationship is terminated at his own request, so the company does not pay him severance pay upon dismissal. Another option is that the employer does not have a suitable vacancy or the disability does not provide for the person’s legal capacity. In this case, compensation is paid in the amount of two weeks' salary.

Upon resignation of one's own free will

Every Russian has the right to terminate an employment contract at any time by notifying the employer at least 2 weeks in advance. If the change of place of work is the initiative of the dismissed person, then no additional payments are due to him by law, except for compensation for unused vacation and salary. The exception is when the employment contract provides for benefits.

Upon liquidation of an enterprise

If the employer breaks off relations with the company’s personnel due to the liquidation of the enterprise, then he is obliged to provide severance pay upon dismissal of everyone. The amount of payment in this case must be at least 1 month of the employee’s salary for the period of employment, but not more than two months. In some cases, the period is extended by the employment service, provided that the dismissed person applied there no later than 14 days from the date of termination of the working relationship with the employer's company.

Upon dismissal due to staff reduction

If a reorganization is planned at the enterprise, which entails a reduction in the number of employees, then management is obliged to provide severance pay upon dismissal to everyone (in accordance with Article No. 178 of the Labor Code). The amount of the payment is equal to the person’s average monthly income and is transferred to his current account or card on the day of the official termination of cooperation.

What payments are due to an employee upon dismissal?

The size and type of payments received by a citizen depends on the specific case. If an employee submits a written application with a request to dismiss him of his own free will, then he can only count on salary and compensation for unused vacation. If the employer decides to terminate cooperation, then all the above amounts and severance pay are paid. In the terms of the contract, the employer could specify other payments that are also made upon termination.

Heads of enterprises upon dismissal due to the transfer of the company and all property to another owner or for other reasons receive severance pay. However, the contract can be terminated at the initiative of the manager, in which case no payment is made. Special conditions are provided for law enforcement agencies, courts, public service. This category has special regulations that reflect the amount of payments and the conditions for their recalculation, depending on the specific case.

Earnings for the period of employment

If cooperation is terminated due to staff reduction or liquidation of the enterprise, then dismissed citizens continue to receive wages. The condition does not apply to those who work part-time or seasonal employees. For all regions, a payment amount equal to one average monthly salary is provided (excess is allowed, but not more than three times). If the enterprise is located in the Far North, then compensation should not exceed the average salary by more than 6 times.

Compensation for early dismissal

If a mass layoff begins at an enterprise, the employer is obliged to notify all persons with whom it is planned to terminate cooperation 60 days in advance of the need to look for a new job. However, early dismissals without warning do occur. This option provides additional compensation. The severance pay is calculated taking into account the employee’s income. The payment must be proportional to the time until the expiration of the notice period.

Compensation for top managers

For management positions, the Labor Code provides special payments. Compensation to top managers is due in the following cases:

1. The owner of the company has changed (they pay compensation for dismissal to the chief accountant, management, and deputies).
2. The manager is fired without giving a reason (provided that he did not violate the company’s routine and did his job efficiently).

They pay compensation to managers upon dismissal in the amount of three average monthly salaries. It is important to take into account that the legislation has not established other payments for top managers (monthly salary until employment or severance pay). However, additional conditions may be reflected in the employment contract (increase in compensation provided for by the Labor Code, etc.).

Amount of severance pay upon dismissal

The Labor Code applies to all enterprises, including entrepreneurs. The amount of severance pay is established taking into account the position and income of the dismissed person and is equal to the average monthly salary. If an employee is fired due to downsizing or liquidation of the company, then the amount must be at least 1 salary. The payment may be increased at the initiative of the employer. Compensation is issued on the day of dismissal; in addition, the employee continues to receive wages until he finds new job, but no more than 3 months.

Other conditions apply to persons who occupy leadership positions. If the owner of the company initiated the termination of the employment contract, then benefits are accrued to this category in the amount of three times the salary. The reasons for canceling the payment are considered to be proven guilt of the manager (violation of the terms of the contract, theft of property, absenteeism, tardiness, etc.).

How to calculate severance pay

To find out the amount you are entitled to upon dismissal, you can use the formula: A*B. A is the ratio between the average salary of an employee and the actual time worked. The figure can be calculated using the formula A=C/E (C is the salary for the billing period, E is the number of days worked). B is the number of days for which benefits are accrued.

For example, with a monthly salary of 20,000 rubles and 20 days actually worked, the ratio will be 1,000 rubles. (20000/20=1000). If an employee needs to pay benefits for 14 days, then its amount will be 14,000 rubles (1000*14). For any calculation system (salary, hourly, piecework), the same formula is used. Regardless of whether the employee is employed immediately or not, he has the right to receive all benefits and compensation in full.

Personal income tax on severance pay upon dismissal

An important issue for every Russian remains the taxation of severance pay. By law, this payment does not provide for the accrual of personal income tax. However, there is an exception. A tax of 13% is levied if the amount of severance pay exceeds three times the monthly salary. If we're talking about about the regions of the Far North and regions that can be equated to such, then personal income tax is charged on six times the salary. An important condition is that all payments must be made through accounting and documented in the prescribed manner.

Insurance contributions from severance pay

The legislation does not provide for the calculation of insurance contributions for severance pay. The following cases are exceptions:

• the manager, on his own initiative, decided to pay the dismissed employee (no benefits provided state law);
• the payment amount exceeds the established limit.

Registration and terms of payment of severance pay

If the employment contract is terminated, the employer must make a full settlement of the workers. The employee must receive all money due on the day of dismissal (transfer to a card or in cash through the accounting department). If the day of termination of cooperation was a weekend, then the dismissed person must receive payment at the beginning of the working week. If a dispute arises between the parties, the employer must pay on time the amount that was not disputed.

Registration of the benefit includes several stages:

1. Preparation normative act, agreement or order (grounds for payment).
2. Familiarization of the employee with the relevant documents.
3. Formation of a reporting document according to form T-61.
4. Issuance of funds or transfer to the employee’s account.

When is compensation paid upon dismissal?

Many Russians have not used it for years due leave due to an unsuccessful period, financial difficulties and other reasons. It is important to note that failure to provide workers with well-deserved rest for more than two consecutive years is prohibited by the legislation of the country. You can take vacation before dismissal or receive monetary compensation for it. The payment is calculated taking into account the dismissal category, position, length of service, absence from work without good reasons, availability of leave at your own expense/to care for a child.

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