What to do if you did not make a calculation upon dismissal? Final settlement upon dismissal of an employee.

Unfortunately, many working citizens, when breaking off labor relations with an employer, are faced with a situation where the latter evades or refuses to pay. What should an employee do in this situation in order to receive the amount of money that is due to him by law? So, today we are talking about what to do if the employer does not pay the calculation upon dismissal.

Deadlines for dismissal

It is important to know that, in accordance with applicable law, the settlement with the employee must be made on the last working day - this provision is regulated by Art. 140 of the Labor Code of the Russian Federation. If the employee was not in the service on the last working day for any reason, then it must be done no later than the next day after the former employee presented the relevant requirements. If the employer does not agree with the amount of the payment to be transferred to the employee, then he is obliged to transfer the undisputed amount within the same time frame. In addition to the principal amount, the employee must be paid compensation for unused vacation days.

The work book, with the corresponding entry made in it, is also issued on the day of dismissal. But, there are a number of circumstances in the presence of which the employer is exempted from liability in case of late issuance:

Finding an employee on sick leave;
If the employee is on vacation;
The absence of an employee at the workplace on the day of dismissal;
Imprisonment of an employee in places of deprivation of liberty;
Voluntary refusal of an employee to receive, about which an appropriate act has been drawn up;
The employee ignored the employer's notice containing a request to appear for a work book;

If the employee is not able to receive the work book personally, he can send a written application to the employer, containing a request to send this document by mail.

What to do if the employer did not calculate upon dismissal

Despite clearly stated time frames, many employers neglect the deadlines within which they must pay. In this case, the employee has the right to apply to the following organizations to restore their violated rights:

Labour Inspectorate;
Prosecutor's office.

Contacting the Labor Inspectorate

Each region has its own labor inspectorate, the main activity of which is aimed at compliance with all norms in labor relations. If the rights of an employee have been violated (including in terms of paying wages), he can file a complaint with the labor inspectorate of the area in which the violation occurred.

There are 3 ways to file such a complaint- in person, by mail or through the website.

On a personal visit. To do this, you need to draw up an application, as well as prepare a package of documents, and then take them to the inspection.
Send a complaint by mail - registered mail with notification. This method is more convenient, but it will take much more time. In addition, there is a possibility of loss of documents in the process of sending.
In electronic form through the official website onlineinspection.rf. For this you need:

go to the specified site;
select a problem category;
fill in information about the employee and the employer;
present information about the essence of the problem;
attach scanned copies of documents;
choose from the proposed options for the actions that the applicant asks to take (arranging a verification of the facts set forth in the application, bringing the perpetrators to administrative responsibility or obtaining a written consultation on this issue);

When filing a complaint, it is important that all data be real- otherwise, the applicant will be refused assistance, since the inspection does not work with anonymous (or fictitious) data.

Within 30 calendar days, the inspection staff will consider the appeal, after which they will send a response to the applicant.

The standard package of documents that must be prepared before filing a complaint with the labor inspectorate:

Statement;
Appointment letter (copy);
Employment contract (copy);
Work book (copy);
Passport (copy).

The application must indicate:

Data about both the employee and the employer;
State in detail the problem in connection with which the application is being submitted;
Put the date and signature (with decoding);

In the labor inspectorate, as well as other state institutions, there are deadlines during which the application must be considered. In all of the above cases, the complaint must be considered by an authorized employee within 1 month from the date of its receipt. This period may be extended, but not more than 30 days. If there has been an extension of the deadline, the inspection is obliged to notify the applicant about it.

What actions will be taken by the inspection staff after a complaint is received?

After the employee's application has been received by the inspection, it is transferred to the official (inspector) to whose territory the employer belongs. Next, the inspector checks the facts indicated in the complaint. If the information is confirmed, he issues an appropriate order and sets a period during which the employer is obliged to eliminate all identified violations.

What are the consequences for the employer of violations?

imposition of an administrative fine;
Disqualification.

All sanctions provided for in case of non-payment of wages are specified in Art. 145.1 of the Labor Code of the Russian Federation.

Going to court

In addition to the labor inspection, the employee has the right to go to court to protect his rights.

Statute of limitations for labor disputes

It is important to remember that labor disputes have special statute of limitations that differ from the general ones - they are indicated in Art. 392 of the Labor Code of the Russian Federation and constitute (in case of non-payment of wages) 3 months, calculated from the moment when wages should have been paid, but this did not happen. If an employee missed this deadline for a good reason (for example, illness), he can restore it by submitting an appropriate application. But if there are no good reasons for this, he will be denied.

Which court should be applied to?

To resolve a labor dispute, it is necessary to apply with a ready-made statement of claim (and the documents attached to it) to the district court at the location of the defendant - in this case, the employer.

How to file a claim

During a personal visit to the court office;
Sending a claim to the court by registered mail;

Features of filing a claim

The claim is filed according to the number of persons who participate in the case - in this case, 2 copies are required;
The claimant in labor disputes is exempted from paying the state fee;
The statement of claim can be submitted both in printed and handwritten form;

Documents to be attached to the application

Calculation of the amount that the employer must pay;
A copy of the employment contract;
A copy of the order of appointment;
A copy of the order for dismissal from office;
A copy of the work book;
Settlement sheets (copy).

Compilation of a statement of claim (what information should it contain)

The name of the court in which the claim is filed;
Claimant's details (full name, residential address, contact phone number);
Respondent's data (name of organization, location address, contact numbers);
In the statement of claim itself, it is necessary to indicate in detail all the circumstances relevant to the case in question:

Dates when the applicant worked in this organization;
Position (or functions performed);
The level of wages prescribed in the contract;
At what point did the fact of violation of rights occur and the employer did not pay the amount of money due to the employee;
Request for recovery of salary arrears;
List of documents attached to the application;

Terms of consideration

After the application has been received by the office, it is registered and transferred to the judge, who, in turn, examines it and accepts it for processing. Also, the judge can leave the applications without movement or return them to the plaintiff, attaching a written justification - in this case, the plaintiff can eliminate the shortcomings that were indicated in the ruling and the application will be accepted for production. For all of the above actions, the judge has a deadline of 5 working days.

If the judge, after familiarization, accepted the application for proceedings, the next step will be to notify the parties of the date and time of the court session.

The period for consideration of this category of cases is 2 months. but it can be extended if necessary.

After consideration of the case, a decision is made, on the basis of which the judge's office issues a writ of execution. According to Art. 211 Code of Civil Procedure of the Russian Federation - payroll cases are subject to immediate execution. This means that a writ of execution must be issued immediately after a decision is made in favor of the plaintiff. While in other categories of cases, a writ of execution is issued after the expiration of the period for appeal and the entry into force of the decision.

When the writ of execution is received, the plaintiff may transfer it to the district department of bailiffs, who, after acceptance, will initiate enforcement proceedings.

Appeal to the prosecutor's office

In addition to administrative responsibility, in case of non-payment of the calculation, the employer can also be brought to criminal responsibility - Art. 145.1 of the Criminal Code of the Russian Federation. The sanctions of the article provide for various types of punishments, namely:

imposition of a fine;
Deprivation of the right to hold certain positions;
Deprivation of the right to engage in a certain type of activity;
Forced labor;
Deprivation of liberty.

According to Article 20 of the Code of Criminal Procedure of the Russian Federation, this type of crime belongs to private-public - this means that a criminal case can be initiated at the request of the victim (employee), but even if the parties are reconciled, it does not stop - for this it is necessary to obtain permission from the prosecutor or the head of the investigation department.

To prosecute the employer- you need to file an application with the prosecutor's office of the district in which the illegal act occurred. In this case, the location of the organization. The application contains the following information:

Timing

All appeals must be considered within 30 days, if additional verification of these facts is not required, then 15. Based on the results of the consideration, an appropriate decision must be made.

Persons responsible

If the facts indicated by the applicant are confirmed, the head of the employing organization or an individual entrepreneur will bear responsibility.

Consideration of the case in court

When the investigation is over and the indictment is signed, it is submitted for consideration to the justice of the peace (according to Article 31 of the Code of Criminal Procedure of the Russian Federation) of the site where this crime occurred. If all the necessary requirements are met: the justice of the peace accepts the case for proceedings, sets the date and time for consideration, an employee of the office of the justice of the peace (usually - the secretary of the meeting, whose powers include this function in accordance with the instructions for office work) notifies the persons participating in the case. If the defendant fails to appear, he may be subjected to forced bringing.

Based on the results of the consideration, a verdict or a decision to terminate the criminal case is issued, against which the persons participating in the case can file a complaint with a higher court if they do not agree. - a period of 10 days is provided for this. After that, it will be possible to appeal only after the restoration of the deadline, documenting the inability to file a complaint within the specified period of time.

Upon termination of the employment contract, all amounts due to the employee must be paid on the day of his dismissal, and if the employee did not work on that day, no later than the next day after he demanded the calculation (Article 140 of the Labor Code of the Russian Federation, hereinafter - the Labor Code of the Russian Federation ).

Part of the first article. 127 of the Labor Code of the Russian Federation establishes that upon dismissal, an employee is paid monetary compensation for all unused vacations.

Failure to comply with the specified requirements of the legislation by the employer can lead to a number of negative consequences for him.

1. Liability

Article 236 of the Labor Code of the Russian Federation provides for the liability of the employer for the delay in payments provided for by law, including compensation for unused vacation. In case of violation of the established period, the employer is obliged to pay the specified compensation with additional interest in the amount of not less than one three hundredth of the current Bank of Russia refinancing rate 1 of the amounts not paid on time. Interest is accrued for each day of delay from the day following the due date of payment up to and including the day of actual settlement.

The amount of monetary compensation paid to an employee may be increased by a collective or labor agreement. The obligation to pay interest in the event of a delay in settlement with the employee arises regardless of whether the employer is at fault.

In addition, Article 237 of the Labor Code of the Russian Federation provides for compensation for moral damage caused to an employee through the fault of the employer (illegal actions or inaction). In paragraph 63 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" it is explained that the Labor Code of the Russian Federation does not contain any restrictions for compensation for moral damage in the event of a violation by the employer of the employee's property rights . Therefore, an employee with whom settlements have not been made in a timely manner has the right to compensation for non-pecuniary damage according to the rules of Art. 237 of the Labor Code of the Russian Federation. Moral damage is compensated in cash in the amount determined by agreement of the parties to the employment contract. In the event of a dispute, the fact of causing moral damage to an employee and the amount of its compensation are determined by the court, regardless of the property damage subject to compensation.

2. Administrative responsibility

Administrative liability for violation of labor legislation (including the requirements of articles 127 and 140 of the Labor Code of the Russian Federation) is established by Art. 5.27 of the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation).

According to the first part of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, violation of labor legislation entails the imposition of an administrative fine:

For officials - in the amount of 1000 to 5000 rubles;

For persons engaged in entrepreneurial activities without forming a legal entity - from 1000 to 5000 rubles. or administrative suspension of activities for up to 90 days;

For legal entities - from 30,000 to 50,000 rubles. or administrative suspension of activities for up to 90 days.

If the violation is committed by a person who has previously been subjected to administrative punishment for a similar offense, this entails disqualification for a period of 1 to 3 years.

Offenders are brought to administrative responsibility if their acts do not contain signs of a crime.

3. Criminal liability

Criminal liability for non-payment of wages, pensions, scholarships, allowances, compensations and other payments is provided for in Art. 145.1 of the Criminal Code of the Russian Federation (hereinafter - the Criminal Code of the Russian Federation).

Non-payment of more than two months of wages, pensions, scholarships, compensations, allowances and other payments established by law (including compensation for unused leave upon dismissal), committed by the head of an organization, an employer - an individual out of selfish or other personal interest, is punished:

A fine of up to 120,000 rubles. or in the amount of wages or other income of the convicted person for a period of up to one year;

Or deprivation of the right to hold certain positions or engage in certain activities for up to five years;

Or imprisonment for up to two years (part 1 of article 145.1 of the Criminal Code of the Russian Federation).

The same act, but entailing grave consequences, shall be punished:

Or a fine in the amount of 100,000 to 500,000 rubles. or in the amount of wages or other income of the convicted person for a period of one to three years;

Or imprisonment for a term of three to seven years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

Prepared answer:
Legal Consulting Service Expert GARANT
Tarasova Tatiana

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Zolotykh Maxim

The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service. For more information about the service, contact your manager.

1 Since June 1, 2010, the refinancing rate of the Bank of Russia has been set at 7.75 percent per annum (instruction of the Central Bank of May 31, 2010 N 2450-U).

The final settlement with the employee upon his dismissal implies the payment of funds that are due to the latter for the entire time of his labor activity. In this case, the grounds for terminating the contract must be taken into account. After all, the salary of a citizen and other necessary payments will depend on this basis. In such a situation, the manager should not forget that the full settlement with the resigning person must be made on the day when the employee last operates in this organization. Otherwise, the boss simply cannot avoid problems with the law.

Foundations

The final settlement upon dismissal is made in all cases of termination of the employment contract. But only on the grounds on which the relationship between the employee and his boss is terminated, the amount of money that the person will receive in the end will depend. According to the norms of Article 140 of the Labor Code, the manager must pay all the 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, you need to do it the next day, when the employee presented a demand for settlement with him. Otherwise, the management may be in big trouble if a person goes to court for the protection of violated rights.

It can be terminated both at the request of the employer and at the initiative of the citizen himself, as well as for reasons beyond their control. In addition, the desire to terminate the labor agreement is often mutual. In the latter case, the final settlement under the contract can be carried out not only on the final day of the person's work, but also after this moment.

Payment types

Regardless of the reasons for terminating the employment contract, a final settlement is required. Mandatory payments include:

employee's salary;
compensation for vacation that was not used;
severance pay upon termination of the relationship between the parties to the agreement under paragraph 2 of part 1

Additional types of financial support include: retirement benefits by agreement of the two parties, as well as other types of material compensation established by the collective agreement.

Issuance and retention procedure

It is clear that all the money due must be paid to the employee. At the same time, some of them can sometimes be withheld. In a particular case, we are talking about vacation pay upon dismissal of an employee for a vacation that he used, but the period of labor activity was not fully worked out, and the citizen decided to terminate his relationship with this organization and wrote a letter of resignation.

But there is another important nuance. Money for the used vacation will not be withheld by the employer from the salary of a person upon his dismissal only if his departure from work is carried out in connection with a reduction in staff or the liquidation of the organization. In this case, the employee will also be entitled to a severance pay in the amount of the average income for two months, and if he did not get a job, then for the third month. The final settlement upon dismissal of a citizen takes place on the last day of his labor activity. And he is paid: salary, compensation for unspent vacation, severance pay, if any.

Vacation pay calculation

The enterprise from which the employee is dismissed must necessarily pay him compensation for the leave that was not used for the entire period of employment. In the event that a person has not been in it for several years, accordingly, the amount of payments is made for all this time. If a citizen terminates an employment relationship with an organization on his own initiative, and the period of work is not completely completed by him, then in this case deductions are made from his salary for the used vacation. In this case, the accounting department will have to calculate the exact number of days or months of work of a person.

The amount of vacation pay upon dismissal is calculated as follows:

The number of days of annual paid leave is taken, for example 28. After that, it is divided by the number of months in a year, that is, by 12. Then the resulting number (2.33) is multiplied by the number of months worked in the working period, for example 4.
Multiplying 2.33 by 4 results in 9.32 unused vacation days. Then this number is multiplied by daily earnings, for example, 900 rubles. It turns out 8388 rubles. This is the money that is due to a person as compensation for unused vacation. Personal income tax - 13% - will be withheld from the same amount.

The final settlement with the employee should not be delayed by the boss. It must be done on time, regardless of for which of the grounds specified in the Labor Code, a citizen is dismissed.

Rules for calculating upon termination of an employment contract

All payments due to the employee, the latter must receive on the final day of his labor activity at this enterprise. In the event that the head did not make the final settlement at the specified time, he will bear administrative responsibility. At the same time, a citizen must receive not only compensatory payments, but also the salary itself for the time of work.

For each day of delay in payments, the manager pays a fine in the amount of 1/300 of the refinancing rate of the Central Bank of the Russian Federation. In addition, if the amount of the final settlement when paying the severance pay is more than the amount of three times the employee's earnings, then personal income tax in the amount of 13% will have to be paid from this monetary allowance. The tax is also withheld when paying vacation pay.

Care on your own initiative

The final settlement upon dismissal of one's own free will must be made with a person on the last day of his employment duties, which includes:

salary for the entire time of work;
compensation for holidays or holidays if a person worked without annual rest for several years in a row.

An important fact should also be noted here. If the leave was used by a citizen, but the period of work was not fully completed, accordingly, upon termination of the contract at the request of the latter, the employer has the right to withhold previously paid funds from his money.

When it is not possible to make deductions for unworked vacation

In a number of cases, which are provided for by law, deduction for leave upon dismissal is not made. This category includes the following situations:

Liquidation of the employer's organization.
Staff reduction.
Termination of an employment contract when a citizen cannot perform duties due to illness.
Call to the army.
With a complete loss of the former labor ability.
Restoration to previous position by court order.
Termination of the employment contract upon the occurrence of circumstances that are beyond the control of the parties.

In any of the above cases of dismissal of a person, the boss must make a final settlement with him on the last day of his work and pay all the money due by law. Otherwise, the person has the full right to defend his interests in the prosecutor's office and the judiciary.

its calculation and size

In a situation where the employer is the initiator of the termination of labor relations, the citizen has the right in some cases to receive compensatory benefits. It is also called a holiday. In this case, the amount of this payment can be in the amount of two weeks or monthly earnings. Monetary allowance in the amount of the employee's salary for two weeks can be in the following cases:

If the state of health of a person does not allow him to continue his labor activity in this organization. Or when he refuses to move to another position, and the boss has nothing more to offer him.
With a complete loss of the citizen's ability to work.
If the terms of the employment contract change.
When a person is called up for military or alternative service.

In the amount of monthly earnings, the allowance is paid:

upon termination of the employment contract due to reduction;
in the event of liquidation of the organization.

Other circumstances may also be established when such benefits are issued to an employee. Nevertheless, the payment of the final settlement upon dismissal, including the compensatory allowance, must be made on the last day of the person's employment. In addition, when calculating this type of compensation, it is necessary to take into account the payment of taxes if the amount of monetary allowance exceeds the employee's salary three times. Otherwise, no income tax is payable.

Final calculation example

An employee who ends his employment relationship with a particular organization is entitled to receive money earned and other compensation, if the grounds for dismissal allow this. Consider the following example.

Ivanov, an employee, leaves the enterprise of his own free will. Naturally, in this case, he does not receive severance pay and the preservation of average earnings for the third month before employment. But he is entitled to the payment of earned money for all the time and compensation for vacation. The final settlement of the employee in this situation will be made in the form T-61. completed upon termination of employment.

Ivanov wrote a statement in April and resigned on the 19th. Accordingly, he must be calculated and given remuneration for work from 1 to 18 inclusive. If his average salary is 20,000 / 22 working days (such a number of them in April), as a result, the amount per day comes out - 909.09 rubles. It is multiplied by the number of days worked in the month of dismissal - 18. As a result, the amount is 16363.22 - Ivanov's salary for April. In addition, the organization first pays tax on this money, and then the accountants issue the final settlement to the citizen.

Since a person quits in April, and he has a vacation according to the schedule only in June, and he did not use it, he is entitled to compensation. The calculation takes place in the following order:

Ivanov worked this year for 3 months and 18 days. But the count will go for 4 full. Rounding to tenths and hundredths is not done, so the amount is calculated from 28 vacation days / 12 months a year = 2.33 days. After that 2.33*4 (worked months)=9.32 days. And only then 9.32 * 909.9 (daily earnings) \u003d 8480.26 (compensation for vacation).

Thus, the final payment is made from all the amounts due to the employee. But in this case, this is only a salary and a cash payment for a vacation, because Ivanov quits on his own initiative. If he had been reduced or dismissed in connection with the liquidation, he would also have received a severance pay, which is also paid with all the money (based on Article 140 of the Labor Code of the Russian Federation).

Arbitrage practice

Currently, many former employees are going to court to protect their rights, which they believe were violated by the manager upon dismissal. Especially if the question concerns cash payments that were not given to the employee on time and in the right amount. In practice, there are even such cases when employers, when making settlements with a citizen, made deductions from his income for vacation that was previously used. And this eventually led to litigation and complaints.

Let's give a colorful example from practice. An employee was fired from a redundancy organization. The head paid off with him in full, but when paying the money, he made deductions for the vacation, which had already been used by the citizen in June. In addition, the redundancy procedure was violated by the employer in terms of the fact that he did not offer the available vacancies to the employee. But at the same time, he accepted other persons for vacant positions, which is forbidden to do when carrying out dismissal measures for such reasons. Having counted his earned money and discovered violations of labor laws, the former employee applied to the judicial authority with a request for reinstatement and payment for forced absenteeism, which occurred through the fault of his boss.

Having considered all the materials of the case, the court came to the conclusion that the employer carried out the reduction procedure without complying with the norms of the labor code. In addition, he made a completely wrong calculation with the employee. He simply did not succeed in the final settlement upon dismissal (2016). He grossly violated the norms of the labor code, in connection with which the citizen was reinstated at work in his position, and the employer paid him moral damages and compensation for the used vacation, which he had previously illegally withheld. That is why managers, when settling accounts with employees, need to be especially careful and not allow violations on their part, so as not to prove their case in the judiciary later.

A person may leave their job for a variety of reasons. However, in any case, the management of the enterprise, before parting, must conduct a final settlement with the employee.

This includes not only the salary itself, but also unpaid vacation pay, bonuses, compensation, severance pay, etc.

But what to do when the administration, even after the termination of relations, does not want to give away honestly earned money under any pretext? Read on for a detailed guide to action.

When do you have to pay the retirement benefit? So, the legislation (namely, paragraphs of Article 140 of the Labor Code of the Russian Federation) clearly states that the calculation must be made on the final day of the relationship with the employer.

However, in practice this rule is fraught with several exceptions.

For example, if an employee on the date of his dismissal was on a business trip or was forced to not be at work due to, and other objective circumstances, then it is necessary to address in writing his demand to the company's administration for the implementation of all necessary payments.

It is advisable to hand it over through the office of the enterprise or send it by mail by issuing a registered letter, an inventory of the attachment to it and a return notification.

Then all calculations must be made literally within the next day after the company receives the relevant document.