A fine is imposed for late payment of wages upon dismissal. What to do if the employer does not provide payment upon dismissal
The final settlement with the employee upon his dismissal implies payment Money, which are due to the latter for the entire period of his working activity. In this case, it is necessary to take into account the grounds for termination of the contract. After all, a citizen’s salary and other necessary payments will depend on this basis. In such a situation, the manager should not forget that full settlement with the resigning person must be made on the day the employee last time carries out its activities in this organization. Otherwise, the boss simply cannot avoid problems with the law.
Reasons
The final payment upon dismissal is made in all cases of termination of the employment contract. But the amount of money that the person will ultimately receive will depend only on the grounds on which the relationship between the employee and his boss is terminated. According to the provisions of Article 140 Labor Code, the manager must pay all funds due to the citizen on the last day of his work. And if it is impossible to carry out this procedure at the specified time, it must be done the next day when the employee made a demand for settlement with him. Otherwise, management may be in big trouble if a person seeks protection of violated rights in court.
It can be terminated both at the request of the employer and on the initiative of the citizen himself, as well as for reasons beyond their control. In addition, the desire to terminate the employment agreement is often mutual. In the latter case, the final payment under the contract can be made not only on the final day of the person’s work, but also after this moment.
Types of payments
Regardless of the reasons for termination of the employment contract, a final settlement is required. Mandatory payments include:
- employee salary;
- compensation for vacation that was not used;
- severance pay upon termination of the relationship between the parties to the agreement under clause 2, part 1
TO additional types Monetary support may include: dismissal benefits by agreement of the two parties, as well as other types of material compensation established by the collective agreement.
Procedure for issuance and retention
It is understood that all monies due must be paid to the employee. At the same time, some of them can sometimes be withheld. In a specific case, we are talking about vacation pay when an employee is dismissed for the rest that he took, but the period of work was not fully worked out, and the citizen decided to terminate his relationship with this organization and wrote a letter of resignation.
But there's another one important nuance. Money for used vacation will not be withheld by the employer from a person’s salary upon his dismissal only if his departure from work is due to staff reduction or liquidation of the organization. In this case, the employee will also have the right to severance pay in the amount of average income for two months, and if he did not get a job, then for the third month. The final payment upon dismissal of a citizen occurs on the last day of his work activity. And he is paid: salary, compensation for unspent vacation, severance pay, if applicable.
Vacation pay calculation
The company from which the employee is resigning must necessarily pay him compensation for vacation that was not used during the entire period of employment. In the case where a person has not been there for several years, the amount of payments is accordingly made for all this time. If a citizen terminates his employment relationship with an organization on his own initiative, and the period of work is not completely completed, then in this case deductions are made from his salary for the vacation used. In this case, the accounting department will have to calculate exact amount 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. Then it is divided by the number of months in the year, i.e. 12. Then the resulting number (2.33) is multiplied by the number of months worked in the working period, for example 4.
- If you multiply 2.33 by 4, you get 9.32 unused vacation days. This number is then multiplied by daily earnings, for example 900 rubles. It turns out 8388 rubles. This is the money that a person is entitled to as compensation for unused vacation. Personal income tax will be withheld from the same amount - 13%.
The final payment to the employee should not be delayed by the boss. It must be done on time, regardless of which of the grounds specified in the Labor Code the citizen is dismissed from.
Rules for calculation upon termination of an employment contract
All payments due to the employee must be received on the final day of his work at this enterprise. In the event that the manager does not make the final payment at the specified time, he will bear administrative responsibility. In this case, the citizen must receive not only compensatory payments, but also the salary itself during 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 severance pay is more than three times the employee’s earnings, then personal income tax in the amount of 13% will have to be paid on this monetary allowance. Tax is also withheld when paying vacation pay.
Care on your own initiative
Final payment upon dismissal at will must be carried out with the person on the last day of his work duties, which includes:
- salary for the entire period of work;
- compensation for vacation or vacations if a person worked without annual rest for several years in a row.
It should also be noted here important fact. If the vacation 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 impossible to make deductions for unworked vacation
In a number of cases provided for by law, deduction for vacation upon dismissal is not made. The following situations fall into this category:
- Liquidation of the employer's organization.
- Staff reduction.
- Termination of an employment contract when a citizen is unable to perform duties due to illness.
- Conscription into the army.
- With a complete loss of previous working ability.
- Reinstatement to previous position by court decision.
- Termination of an employment contract upon the occurrence of circumstances 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 funds due by law. Otherwise, the person has every right to defend his interests in the prosecutor’s office and the judiciary.
its calculation and size
In a situation where the initiator of termination labor relations the employer acts, the citizen has the right in a number of cases to receive compensatory benefits. It is also called a day off. In this case, the amount of this payment can be in the amount of two weeks or one month’s earnings. Cash allowance in the amount of the employee’s salary for two weeks can be in the following cases:
- If a person’s health condition does not allow him to continue labor activity in this organization. Or when he refuses to move to another position, and the boss has nothing more to offer him.
- In case of complete loss of a 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 benefit is paid:
- upon termination of an employment contract due to layoffs;
- in case of liquidation of the organization.
Other circumstances may also be established when such benefits are issued to an employee. However, payment of the final payment upon dismissal, including compensatory benefits, must be made on the last day of the person’s work activity. In addition, when calculating this type of compensation, it is necessary to take into account the payment of taxes if the amount of monetary compensation exceeds the employee’s salary three times. Otherwise, personal income tax is not paid.
Example of final calculation
An employee who terminates his employment relationship with a specific organization has the right to receive earned money and other compensation if the grounds for dismissal allow this. Consider the following example.
Employee Ivanov leaves the company of his own free will. Naturally, in this case he does not receive severance pay and does not receive average earnings for the third month before employment. But he has the right to payment of earned money for the entire time and compensation for vacation. The final payment to the employee in this situation will be made according to the T-61 form. to be completed upon termination of the employment relationship.
Ivanov wrote a statement in April and resigned on the 19th. Accordingly, he should be calculated and given remuneration for work from 1 to 18 inclusive. If it average salary 20,000/22 working days (this is the number of them in April), the resulting amount per day is 909.09 rubles. It is multiplied by the number of days worked in the month of dismissal - 18. As a result, the amount comes out to 16363.22 - Ivanov’s salary for April. In addition, the organization first pays tax on this money, and then accountants issue the final payment to the citizen.
Since the person quits in April, but he only has scheduled vacation in June, and he did not use it, he is entitled to compensation. The calculation occurs in the following order:
Ivanov worked this year for 3 months and 18 days. But the count will be 4 full. Rounding to tenths and hundredths is not done, so the amount is calculated from 28 days of vacation/12 months a year = 2.33 days. After which 2.33*4 (months worked)=9.32 days. And only then 9.32*909.9 (daily earnings) = 8480.26 (vacation compensation).
Thus, the final calculation is made from all due to the employee sums But in this case, this is only a salary and cash payment for vacation, because Ivanov quits on his own initiative. If he were laid off or fired due to liquidation, he would also receive severance pay, which is also paid with all funds (based on Article 140 of the Labor Code of the Russian Federation).
Arbitrage practice
Currently, many former employees are turning to court to protect their rights, which they believe were violated by the manager upon dismissal. Especially if the issue concerns cash payments that were not timely and in the right size handed to the employee. In practice, there are even cases when employers, making payments to a citizen, made deductions from his income for vacation that was previously used. And this ultimately led to lawsuits and complaints.
Let's give a colorful example from practice. The employee was dismissed from the organization due to staff reduction. The boss paid him in full, but when paying the money, he made deductions for the vacation, which the citizen had already used in June. In addition, the dismissal procedure for layoffs was violated by the employer in that he did not offer available vacancies to the employee. But at the same time, he accepted other persons into vacant positions, which is prohibited when carrying out measures for dismissal on such grounds. Having counted his earned money and discovered violations of labor legislation, the former employee applied to the judicial authority with an application for reinstatement at work 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: the employer carried out the layoff procedure without complying with the labor code. In addition, he made a completely incorrect calculation with the employee. He simply failed to make the final payment upon dismissal (2016). He grossly violated the norms of the labor code, in connection with which the citizen was reinstated in his position, and the employer paid him moral damages and compensation for the vacation used, which he had previously illegally withheld. That is why managers need to be especially careful when paying employees and avoid violations on their part, so as not to later prove their case in the courts.
Failure to pay the funds required by law upon termination of an employment contract is a violation of labor legislation. Often, the employer promises the dismissed employee to pay the money later or avoids payments altogether.
There is only one way out in such a situation - filing a complaint with the relevant government authorities.
All nuances in this area and the procedure for calculating such payments are regulated
Article 13 of the Labor Code. According to legal regulations, the day of dismissal is considered to be the last day spent by the employee at work. On the same day the accounting department makes final payment with a former employee.
If for any reason an employee was absent from work (for example, it was a weekend), he has the right to make a written request later for the release of funds. After such a request, the accounting department issues accrued payments no later than the next day after the specified request is presented from the employee (Article 140 of the Labor Code).
If there is a dispute about the amount of payments, the employee is given that part of the funds to which he has no claims.
The remaining money will be paid after judicial review within the time frame established by the judicial authority.
It is the responsibility of employers to issue estimated payments strictly within the time limits specified in labor legislation. However, there are often cases when payments are made on the day of issue to the rest of the employees of the organization or enterprise. Which is also a gross violation of the law.
What to do if the money is not issued?
In order not to be deceived, you need to know exactly what payments an employee leaving his place of work is entitled to claim. Charges include: 
- unpaid for the current working month (until the day of dismissal!);
- compensation accruals for periods of temporary disability (payment sick leave, if they have not yet been paid);
- , if they have been accrued to the employee, but have not yet been paid;
- (these funds are credited only in certain cases, for example, when calculating at his own request, the employee will not receive such benefits).
All transferred funds are issued in one payment on the day of termination of employment, that is, upon actual dismissal with the issuance of a work book.
Ways out of the situation
For officially employed
Persons who carried out labor activities in accordance with employment contract 
(officially employed), if payments are delayed, they can take away the salary offered to them by an employee of the personnel department. And only after that solve the problem with filing a complaint. This is done in order not to become a hostage to the situation. After all, if a dispute arises, the employer may also delay the issuance of the work book, which will make it impossible to find a new job.
It is also necessary to clarify the reason for the delay in settlement in the accounting department of the organization or enterprise. It can be quite respectful from the point of view of the law. For example, after deduction of all due taxes and payment of wages, there were no free funds left in the budget. In this case, the dismissed employee will have to wait until the company or organization earns money.
It is necessary to take it from the accounting department, which records the amount of previously received wages (about income). This step will prevent the employer from challenging the salary data. The employee has the right to receive this document even after working his last day.
For unofficial employees
Persons who received wages unofficially, in case of delay in payments, will have to take care of collecting evidence of the fact of work at a specific enterprise or organization.
In this capacity, you can use any settlement documents previously received in the accounting department.
If the salary was given in person, bypassing the accounting department (the so-called), it will be extremely difficult to prove anything.
The only reasonable way out is to contact the prosecutor's office with a complaint, which will initiate a prosecutor's inspection of the enterprise. In most cases, the mere fact of such a check is enough for the employer to settle accounts with the former employee. After all, other unofficial employees may work at the enterprise, which threatens the imposition of fines and official proceedings.
Appeal to the courts in this case requires the employee to have witnesses who can confirm the fact of his work at the specified enterprise.
Where should I contact?
To the labor inspectorate
If there is a dispute regarding some part of the payments and a claim is made 
employer, the employee must contact the labor inspectorate. And only if your demands are not met, file a lawsuit. By this point, as a rule, most of the accruals have already been paid, and the employer retains only a certain part of the funds.
There are no deadlines for contacting this body by law! The complaint is presented in free form, but it is advisable to attach documentary information about income from the accounting department (certificate).
The complaint is considered within one month. After which a written response comes from the inspector with instructions for employers, which must be fulfilled within ten days. If we are talking about reinstatement at the previous place of work, up to three months.
To the prosecutor's office
After writing an application to the inspectorate, you must submit a written complaint to the prosecutor’s office, which will initiate an inspection of the enterprise or organization, allowing you to identify all violations in the field of labor relations with employees.
An application to this body is written in a unified form (on a special form). All documents are attached as evidence to the complaint. Required documents or copies thereof, including income statements. It takes up to thirty days from the date of its filing to consider the complaint.
To court
After the prosecutor's inspection or simultaneously with it, you can file a claim with the judicial authority located at the location of the organization or enterprise. The claim is drawn up in several copies, taking into account the number of all defendants, and is submitted to the court along with documents proving the guilt of the employers. 
But in most cases, the prosecutor independently submits the documents collected during the inspection to the court, initiating legal proceedings.
If a claim is filed former employee, he must indicate in this document the exact reason for the delay in payment and describe all the circumstances of the violation, making reference to the provisions of labor legislation (352nd, 353rd, 381st and 382nd article of the Labor Code). The package of documents is usually formed from a copy of the passport, work book, labor contract and certificates about the reason for the delay issued by the accounting department.
The employee should hurry up when filing a claim. The legislation imposes monthly limit for the period of filing a complaint with the court. The countdown starts from the moment the work book is issued or the day management issues the order. The case is considered within a month. A decision judgment against the employer is subject to immediate execution.
Employer's liability
In case of delay in settlement funds, employers bear financial 
liability (fines are imposed in accordance with Article 236 of the Labor Code).
Issued to the employee along with. The amount of interest (compensation) is directly related to the refinancing rate set for this moment by the Central Bank, and cannot be lower than one three hundredth of this rate. The period of delay in calculating interest is counted from the day following the last day of work. Such compensation is paid for any delay, regardless of the fault of the employers!
Payment of compensation is controlled by the labor inspectorate. It is this body that should be contacted to receive wages from the employer along with the compensation required by law.
Delay in payment for a period of more than two months is punishable by the imposition of large fines on the enterprise or organization. Typically, such a fine is a consequence of legal proceedings. According to the Criminal Code (article number 145.1), employers are obliged to pay from 100,000 to 500,000 rubles to the local budget of the region.
Also, management may be prohibited from holding a position for a period of time. three years. Sometimes the right to hold leadership positions is permanently withdrawn.
A person can quit his job for various reasons. However, in any case, the management of the enterprise must make a final settlement with the employee before parting.
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 what it honestly earned under any pretext? Detailed Guide read on for action.
When are you required to pay compensation upon dismissal? 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 existence 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 not to be at work due to and other objective circumstances, then it is necessary to address his demand in writing to the company administration for making all necessary payments.
It is advisable to deliver it through the office of the enterprise or send it by mail, having issued ordered letter, a description 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.
Financial liability of the employer for delay in payment of the settlement
First of all, this is compensation for violation of the deadline for providing all due amounts (payment not paid on time).
If you don't have the energy or time to litigation, you can try to resolve the dispute with the employer through other structures.
Firing from a job is a rather unpleasant and exciting situation for most people. The need to explain the situation to the employer, write a statement, uncertainty, lack of stable income - all this greatly affects a person’s mental well-being.
A situation where an employer violates legal rights employee and does not give a calculation, makes the dismissal procedure even more unpleasant. In addition, such violation of the law may significantly affect financial situation person - when leaving work, people, as a rule, expect a certain amount of payments from their former employer. Let's consider what opportunities an employee has to receive a payment.
Settlement payment procedure
According to the Labor Code, when dismissing an employee, the employer must pay him:
- Compensation for unused vacations. This includes all vacations during the period of work at the enterprise.
- Salary for the days that a person managed to work.
- In some cases, the law provides for the payment of additional benefits to employees upon dismissal. Such a payment is due in the event of dismissal due to layoffs in connection with the liquidation of the enterprise.
Regardless of the reasons for dismissal, the organization must pay the person on his last day of work. The money can be given in person along with the work book or transferred to his bank account. If at this time he was absent from the workplace, the management of the organization must make payments after the employee submits demands for payment.
What do you need to do to receive your money?
The employer does not pay the amounts due upon dismissal? This is a fairly common situation. There can be many reasons. The most common situation is when the management of the organization and the former employee do not agree on the amount of the settlement.
The first step an employee must take is to contact the labor inspectorate. This body will help the parties to labor relations come to an agreement. It will also oblige the employer to pay the settlement amount.
Did the appeal to the labor inspectorate have no impact on the employer? The second step that will help you get your money back is going to court.
The procedure for going to court to obtain payment from the employer
When contacting the judicial authorities, it is important to take care of reliable evidence. Along with the statement of claim, you must provide:
- a copy of the employment order;
- dismissal order;
- a copy of the entry in work book about dismissal.
You can also provide other evidence: witness statements, pay slips and others relevant to the case. The main thing: they must confirm the fact of work, the size of the average monthly salary and the conscientious performance by the employee of his work functions.
If the plaintiff manages to prove his position, the former employer will have to pay him not only his salary, but also additional interest for late payment.
Consequences of refusing to pay an employee
Refusing to pay a former employee is quite dangerous for the organization. Such actions entail various negative consequences:
- material costs for litigation;
- the need to pay compensation to the employee for delay in payment;
- administrative responsibility.
The law provides for a fine for unscrupulous employers. At the same time, money is paid not only by the organization, but also by officials who are obliged to pay the employee on time. For officials, the fine ranges from 5 to 50 minimum wages, and for an organization - from 300 minimum wages.
The rules described above protect the rights of workers from unscrupulous employers. Financial and administrative responsibility serves as a good deterrent. The main thing is to go to court on time! The maximum period for application is one month. This government agency will help protect the rights of the employee and punish the unfair employer.
The 2016 Act was released to support the interests of employees. But has the legislator really thought through the mechanism of its action and possible consequences? After all, on the basis of this document managers may be subject to criminal liability.
Punishment of the manager for delay in salary and dismissal payments
Real repression awaits those careless managers who, to the detriment of their employees, do not pay their due payments on time. Such payments include:
- monthly wage and other remuneration for work
- bonuses and incentive payments
- financial assistance and benefits
- compensation and settlement upon dismissal
- annual holiday pay
If the issuance deadlines are not met, the law proposes to punish the employer, but there may be other grounds for this. These include:
- 3 month delay in payments
- less than ½ of the salary is transferred to the employee’s account
- payment delay was 60 days
- paid less than the contract amount
If the delay in salary has caused serious harm to the employee, the employer's punishment may include imprisonment. At the same time, the obligation to pay money is not removed from the manager. He is obliged to transfer payments to employees already with penalties and fines.
PLEASE NOTE: it is legally possible to reduce the amount of payments for penalties and interest due if there are no funds in the company’s accounts and balance sheet.
It is possible to imprison a manager if there are sufficiently compelling reasons according to which the court recognizes that the employer deliberately failed to comply with the requirements - as enshrined in Article 14 of the Criminal Code of the Russian Federation.
Responsibility for non-payment of payment upon dismissal
Law enforcement officers have incorporated into laws special provisions against bosses who violate labor law. They are subject to punishment in the form of material, administrative and even criminal liability. The owner of the company has the right to apply and disciplinary action to such a leader.
If a manager, contrary to sound logic, neglects his duties, measures may be taken against him in the form of:
- material obligations to employees
- real criminal liability
- administrative and disciplinary punishment
Article 142 in its 2nd part of the Labor Code of the Russian Federation states that if a manager, vested with the power to decide when to pay and when to delay payment of wages, does not fulfill his duties on time and the delay is more than 15 days, the employee has every right to refuse to fulfill his duties. job responsibilities, even his absence from the workplace is acceptable. Such rules are enshrined in letter of the Ministry of Labor of the Russian Federation 14 2 337 dated December 25. 2013
There are also penalties for failure to comply with the terms of payment of wages, including calculations upon dismissal, because a dismissed employee cannot punish his negligent manager by absenteeism from work. The size of the fine depends on the number of late payments that a particular director allowed himself. The amount of punishment can be from 10,000 to 100 thousand rubles. It depends on the following factors:
- characteristics of liability - administrative or criminal
- number of days/months overdue
- consequences of late payments for employees
- presence of previously established similar facts
IMPORTANT: to officials, responsible for failure to issue pay and settlement upon dismissal on time are both the director and Chief Accountant enterprises, they will bear responsibility for this together.
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