If an employee at the time of dismissal due to the liquidation of an enterprise or staff reduction had worked for the company for more than a year and five and a half months, but did not take advantage of the right to leave for the second working year, then he is entitled to full compensation for unused vacation, that is, for all 28 calendar days. The corresponding recommendations of Rostrud are contained in Minutes No. 2 dated June 19, 2014 (approved at the meeting working group on information and consultation of workers and employers).
Essence of the question
By general rule upon dismissal, the employee is paid compensation for all unused vacations (Article 127 of the Labor Code of the Russian Federation). Vacation to be replaced by monetary compensation upon dismissal of an employee is calculated on the basis that full vacation is due to an employee who has worked a full year. It consists of 12 full months and is calculated from the day the employee starts working for a specific employer. For example, if an employee was hired on July 1, 2013, then he is granted leave for the working year from July 1, 2013 to June 30, 2014.
The procedure for calculating compensation for unused vacation is established by the Rules on regular and additional holidays, approved by the NKT of the USSR dated April 30, 1930 No. 169 (hereinafter referred to as the Rules). Although this document was adopted more than 70 years ago, it is still applied (to the extent that does not contradict current legislation).
Previous position of Rostrud
Previously, Rostrud explained: clause 28, which provides for the payment of full compensation upon dismissal of an employee due to liquidation, who worked from 5.5 to 11 months a year, applies only if the employee has worked in this organization for less than a year. And compensation for the second working year is paid exclusively in proportion to the time worked (see letters from Rostrud dated 03/04/13 No. 164-6-1, dated 08/09/11 No. 2368-6-1). This means that an employee with 5.5 months of experience in a liquidated company has the right to receive full compensation, and an employee with 1 year and 5.5 months of experience is paid a smaller amount of compensation (in proportion to the time worked).
New position of the department
Now Rostrud specialists have changed their position. The rationale is this. Paragraph 1 of the Rules stipulates: every employee who has worked for a given employer for at least 5.5 months has the right to receive another vacation. Regular leave is granted once per working year. The right to the next regular leave for the new working year arises for the employee after 5.5 months from the end of the previous working year. Thus, the entitlement to vacation is linked to the employee's working year.
Consequently, when dismissal due to liquidation or staff reduction, we are talking about the period (working year) for which leave is granted, and not about the total duration of work for a given employer. That is, full compensation for dismissal due to the liquidation of an enterprise or staff reduction is awarded to employees who have worked from 5.5 to 11 months in a working year. Accordingly, an employee who has worked for an organization for more than one year and 5.5 months and is dismissed due to staff reduction has the right to receive full compensation for unused vacation for the last working year. A different interpretation of this norm would mean an unequal position for employees who have worked in the organization for less than a year and those who have worked for a longer period, Rostrud specialists noted.
During the economic crisis, many enterprises lay off their employees to optimize operations. In this regard, for most people, both for heads of organizations and for its employees, the question of what severance pay when redundancy must be paid, how to calculate it.
Reduction
According to the Labor Code of the Russian Federation, one of the reasons for the cancellation of an employment contract is a reduction in the staff or number of employees of the enterprise.
A workforce reduction is a reduction in the number of workers in one position. For example, the reduction of three accountants out of eight. And staff reduction is the disbandment of a department or the elimination of identical staff units (i.e., for example, all engineers or all controllers). In both cases, the employer must follow the law: provide sufficient grounds for carrying out these procedures, provide the employee with all the guarantees and compensations required upon termination of the employment contract (pay severance pay when the employee is laid off, ensure a preferential right to remain in office, etc.) . P).
The reduction procedure involves the following steps:
- issuance of an order;
- notifying employees and offering them other job vacancies;
- informing the Employment Center and the trade union;
- dismissal of workers (as well as prescribed by law payment of severance pay upon layoff).
Issuance of an order
As soon as the manager decides to make reductions at the enterprise, he must issue a corresponding order. The mandatory form of this order is not established by law, but the boss must take full responsibility for its preparation.
The order to carry out reduction measures at the enterprise must indicate the date of the upcoming procedure and the changes that are expected to be made to the staffing table.
Notification to employees
After the manager has issued a layoff order, he must notify each employee in writing of the upcoming dismissal. However, this must be done no later than 2 months before the workers are removed from work.
A separate notice is drawn up for each laid-off employee, which is handed to him personally against signature. IN this document the date and reason for dismissal are indicated.
Along with the notice of layoff, the employer is obliged to provide the employee with a list of available jobs (if any). If the worker agrees to move to a new position, the boss formalizes his transfer. The manager is obliged to offer available vacancies as they become available until the day the employee is dismissed.
Informing the employment service and trade union
In addition to the fact that employees must be informed about the dismissal directly, the employer notifies the Employment Center and the trade union of this fact. The boss two months before the proposed dismissal (and in cases mass layoffs- three months in advance) is obliged to notify these organizations about the upcoming event.
At the same time, the trade union must be informed both about the reduction of employees included in it, and about all other dismissed workers.
Dismissal of an employee due to reduction
After two months from the date of notification to employees, their immediate termination is carried out. labor activity. To carry out this stage, the head of the organization issues dismissal orders, as a rule, in form No. T-8. In this order, in the “Grounds” column, reference is made to the reduction order, and, if available, to the document in which the employee expressed his consent to dismissal before the end of the warning period.
On the last working day, the worker must be paid severance pay upon reduction and must be handed over employment history. As for the entry in it, a corresponding note is made with reference to Art. 81, part 1, clause 2, Labor Code of the Russian Federation.
Severance pay
Severance pay in case of layoff is a material payment to an employee of an enterprise upon his dismissal due to a decrease in the number of employees or staff of the organization. This type of compensation includes average monthly earnings, as well as the average monthly salary retained by the employee for the period of employment, but not more than 2 months from the date of dismissal (including severance pay).
In some cases, such payments can amount to three average monthly salaries: in situations where the employee registered with the Employment Center within a period of up to two weeks from the date of his layoff and was not employed after 3 months.
Severance pay when personal income tax is reduced is not taxed according to Art. 217, clause 3 of the Labor Code of the Russian Federation. The exception is payments exceeding three months' salary.
By collective agreement or labor agreement, the amount of compensation for redundancy may be set higher than that established by law.
Benefit calculation
Since the payments in question amount to several average monthly wages, the amount of severance pay in case of reduction is calculated in accordance with Art. 139 of the Labor Code of the Russian Federation and Decree of the Government of Russia No. 922 of December 24, 2007, regulating the calculation of wages.
The average salary of an employee under any working regime is calculated on the basis of funds actually accrued to the employee and data on the time practically worked by him for the 12 previous calendar months.
Calendar month in in this case- this is the period of time from the 1st to the 30th/31st day of the month inclusive, and in February - to the 28th/29th.
The calculation of wages includes all forms of payments permitted by the wage system, which are used by the employer in question, regardless of their sources. The average salary of an employee cannot be less than statutory living wage.
Size cash payments employees does not depend on their age, length of service or skill level. For example, severance pay when a pensioner is laid off is calculated on a general basis.
Period and charges included in the calculation
In cases where an employee works at an enterprise for less than 12 months, the time during which the person was registered in the organization is taken to calculate the average monthly salary and, accordingly, severance pay. If the worker has not worked even a month before being laid off, then the tariff rate or salary established for him is used for calculation.
When calculating the average salary, the following are not taken into account:
- the time when the employee retained the average wage, except for breaks for feeding the child, which are provided labor legislation RF;
- days on which the employee was on sick leave or received maternity benefits;
- period of non-compliance by the employee required work for reasons beyond his control;
- the time of a strike in which the employee did not participate, but could not perform his direct duties in connection with it;
- additional paid days off to care for disabled children;
- other periods during which the worker was exempt from performing his duties job responsibilities with full or partial retention of wages or without it.
It should also be taken into account that when calculating salary, bonuses received by the employee during the reporting period are taken into account. If these remunerations were received by a person who did not work for 12 full months, the amounts of such receipts are taken into account in proportion to the time actually worked (with the exception of those bonuses that were accrued for the practically worked period, for example, monthly or quarterly).
Additional compensation
In addition to the fact that the employee must be paid the required severance pay upon layoff, at the time of dismissal the worker is also entitled to other payments.
So, for example, an employer can, with the written consent of an employee, dismiss him earlier than the deadline established by the layoff order. In this case, the boss is obliged to pay the subordinate additional compensation, which is the average salary of the employee, calculated in proportion to the time remaining before the end of the notice period for dismissal. Such compensation does not imply that the basic severance pay will not be paid in the event of a layoff.
Along with the specified material compensation, the employee receives a salary for the period worked and compensation for unused vacation.
Severance pay for certain categories of citizens
The Labor Code of the Russian Federation and other legislative acts provide for a different size of severance pay upon layoffs for certain categories of employees that differs from the general amount.
So, for example, compensation for employees working at enterprises located in the Far North or territories equivalent to them is the average monthly earnings, as well as the average monthly salary for the period of employment, but not more than 3 months from the date of dismissal (taking into account the benefit). These employees may be paid compensation for subsequent months for up to six months by decision of the employment service if the employee applied to the specified body within a month from the date of dismissal and was not employed by them.
In situations where seasonal workers are laid off, the benefit in question is two weeks' average earnings.
Other guarantees for employees upon layoffs
At the same time, that an employee is given severance pay in the event of a reduction in staff, the Labor Code of the Russian Federation also provides other guarantees for employees in the event of a reduction. These include, for example, the priority right of certain categories of workers to remain in their workplace.
Thus, a manager, when choosing from several candidates for dismissal, must take into account that:
2. Preference is given to those employees who have greater labor productivity and qualifications. In cases where these indicators are equal, the following is left at the workplace:
- employees if they have 2 or more dependents;
- workers in whose family there are no other people earning money;
- workers who received injuries or occupational diseases at work;
- disabled military personnel;
- employees who improve their qualifications at the direction of the employer on the job.
To summarize, we can note the following:
- in the Russian Federation, the reduction procedure is regulated at the legislative level;
- Labor Code of the Russian Federation and others regulations establish the rules by which staff reductions, severance pay and other compensation to dismissed employees are made;
- The law establishes minimum amounts of severance pay and additional payments, but a collective or labor agreement may establish other, larger amounts.
Sometimes a situation occurs when an employee is fired due to staff reduction. The company's management has the right to do this, however, it is necessary to know all the nuances in order to carry out the procedure according to the law, what compensation payments are due to such an employee and who does not have the right to fire.
Initially, it is necessary to clarify that the employer must announce dismissal to the employee due to staff reduction at the enterprise no less than two calendar months before this date. Moreover, notification must be in writing and the employee must sign for familiarization. If this is not done, he has the right to be reinstated in his position by law. Afterwards, the company must offer the employee new vacancy corresponding to his specialty, if any.
After this period, the relationship between employer and employee is terminated. labor Relations and payments due for staff reduction are drawn up in the form of benefits, which is his average monthly salary. This benefit is paid until the employee finds a new job, but no more than within two months from the date of dismissal.
Let's take a closer look correct order registration of employee dismissal and what payments are due upon layoff.
Dismissal procedure
This procedure is strictly regulated by law and must occur in a strictly sequential order.
Initially, an order is drawn up for the enterprise to reduce staff. Then it happens official notification to the employee or employees about dismissal and offering them another vacancy (if available). After this, it is imperative to notify the trade union and the employment service. At the end of two months, it is necessary to dismiss the employee and pay him benefits.
An order to reduce staff has nothing to do with an order to dismiss. This is the starting point, after which the manager has the right to begin the process of reduction, notification of employees, etc. There is no approved form for such an order, however, it must indicate the date of the upcoming reduction, positions that are planned to be reduced and changes in the staffing table.
After issuing this order, it is necessary to notify the employee or employees whose positions are subject to reduction, but not less than two months in advance. It is issued in writing separately for each employee, in which they are required to sign for receipt. In the notice there must be a date the proposed dismissal, its reason and the offer of other vacancies suitable for the employee according to his specialty, if any.
An important nuance - if at the time of notifying an employee about a reduction in staff there are no vacancies suitable for him, but such vacancies subsequently appear until the day of dismissal, the company is obliged to offer them to the employee. The employee has the right to accept the proposed new position or refuse it.
If the enterprise has a trade union, the employer must notify him of the layoff even those employees who are not members of it, at least two months before the date of dismissal. If for any reason there is a threat of mass layoffs, this period is increased to three months. The same rules exist for reporting planned staff reductions to the employment service.
Upon direct dismissal of an employee an entry is made in the work book that the employment contract was terminated due to a reduction in the organization’s staff on the basis of clause 2, part 1 of article 81 labor code RF.
And now, in more detail, what payments are due to an employee upon layoff.
Entitled payments
According to the Labor Code of the Russian Federation (Article 178), an employee who has lost his position due to staff reduction at the enterprise is entitled to a benefit equal to his average monthly earnings. He must receive this benefit no later than six days from the date of dismissal. In addition, on the day of dismissal the employee is obliged to receive all back wages and compensation for unused vacation.
Within two weeks from the date of dismissal, former employee has the right to contact the employment service to look for a new place, and if he does not find a suitable vacancy, the enterprise is obliged to pay him another compensation, also equal to the average monthly income. The decision on re-payment of benefits is made by the employment service. An employee has the right to receive such payments for no more than two months from the date of dismissal and only if he has not found a suitable vacancy with the help of the employment service or on his own.
Let’s summarize what payments he is entitled to when an employee is laid off and within what time frame.
- Full repayment of all debts on wages and unused vacation is not later in the day dismissals.
- Severance pay, which is equal to the average monthly income (no later than six days from the date of dismissal).
- Average earnings for the period of employment within two months from the date of dismissal (only if you contact the employment service and there is no suitable vacancy).
There are cases of agreement between the parties when an employee can be dismissed before the expiration of two months after his notice and with his written consent. In such a situation, the employee additional payment is made financial compensation
in the amount of average monthly earnings, calculated in proportion to the days remaining before dismissal. This compensation is an additional payment and does not cancel other benefits provided under the Labor Code.
Sometimes there are special cases when an employee refuses to move to another position, but cannot occupy the current one due to:
- reinstatement to the position of an employee who previously held it (for example, leaving maternity leave or a court decision);
- refusal to move to another city where the position is being transferred;
- conscription of an employee into the army;
- changes in the employment contract and its terms;
- recognition of an employee as incapable of work.
In this situation, he is also subject to layoffs and is entitled to two weeks' average earnings.
How to calculate severance pay?
The calculation of the average monthly salary to calculate the amount of severance pay required for payment is regulated by the Labor Code of the Russian Federation, namely Article 139. In order to calculate it correctly, it is necessary to clearly define the following data:
- start and end dates of the month for which benefits are paid;
- number of working days (hours at piecework payment) in the month for which compensation is due;
- calculate the average daily earnings (or average hourly earnings).
After receiving all this data, the average monthly earnings are calculated, which is the amount of severance pay. It is subsequently the required compensation paid to the employee within two months if he does not find a new job.
When calculating average monthly earnings, a period of 12 months is taken that preceded the month the employee was dismissed. For the calculation, only those amounts are taken that relate to wages (direct remuneration of the employee) and do not take into account possible compensation that occurred during the calculation period, namely:
- directly wage(bid);
- additional payments for increased qualifications of an employee;
- additional payments for the quality, quantity or complexity of work;
- bonuses and other incentive payments;
- compensatory bonuses and additional payments related directly to labor (related to the employee’s fulfillment of his labor obligations).
Compensations that are not included in the billing period include those that are not related to the work process. This payment by sick leave and compensation for unused vacation, if it was accrued during the period taken for calculation.
The nuances of compensation during the period of employment
In order to receive the average earnings due for the second month of employment, former employee must provide evidence that he still couldn't find new job. The supporting document in this situation will be the work book, the entries in which will show whether he has already found a job or not.
This redundancy payment is compensation former employee for the period of employment, respectively, as soon as he finds a new job under an employment contract, he loses his right to receive it. That is why average monthly earnings are always paid only at the end of each calendar month from the date of dismissal of the employee due to staff reduction. Moreover, if he finds a job in the middle of this period, he has the right to compensation payment for the days that he was in search before he was registered at a new place of work.
Severance pay has nothing to do with this - it is compensation for loss of work and is paid even if the dismissed employee finds a job the very next day.
Legislative aspects
When dismissing employees due to staff reduction, there are a number of legislative subtleties and nuances that must be known and observed so that no claims can arise against the employer.
According to Article 261 of the Labor Code of the Russian Federation A woman cannot be laid off, expecting a child. Even if she works on the basis of a fixed-term employment contract, after providing medical certificate, the employer is obliged to renew her contract. The only legal option for reduction in this case is if she held the position of another employee due to his temporary absence, and there is no possibility of transferring her to another vacancy.
They also do not have the right to fire a woman who has children under three years old, a single mother raising a child under fourteen years old, or a disabled child under eighteen years old due to layoffs.
Teachers and other education workers do not have the right to be fired due to layoffs before the end of the school year.
When reducing staff, if there is a question of dismissal between several employees, there is a moment preemptive right. It is primarily possessed by employees who have higher qualifications or labor productivity. If there are no such indicators or they are equal, then the following have the advantage of remaining in the position:
- family workers who are the sole breadwinners.
- family workers who support two or more dependents.
- employees who received an occupational disease or work injury at this place of work.
- employees who improve their qualifications for their position without interruption from work.
It is also worth remembering that compensation payments for layoffs to an employee working part-time are not due, since he has a main place of work.
If an employee is laid off after working in the organization for less than six months, he are still required to pay compensation for unused vacation.
By agreement of the parties, the employer may dismiss an employee without notice two months in advance, while retaining all compensation payments, but only with the written consent of the latter. If such an agreement is not reached between the parties, the reduction procedure occurs as usual.
Going to court
If an employer, when reducing staff, violates the rights of a dismissed employee, the latter always has the right to go to court. The deadline for filing a claim is thirty calendar days from the date of dismissal (receipt of a copy of the order or work record book).
Unfortunately, there are facts when an employer, wanting to save money and taking advantage of the employee’s ignorance of the labor code, violates the law and forces the employee to write a statement on at will, occur quite often. That's why you need to know your rights and not be afraid to defend them in court. If the court finds such a dismissal illegal, the employer will be required to reissue the documents and pay all required compensation, or possibly reinstate the employee with payment for forced absence.
). The standard mandatory payments due to a dismissed person include:
- Salary not accrued for the current month.
- Compensation for unclaimed days of rest for all paid holidays (Article 127 of the Labor Code of the Russian Federation).
- Severance pay (according to Article 178 of the Labor Code of the Russian Federation, this is the amount of average monthly earnings).
When calculating and actually paying this type of compensation, the general procedure is applied. Personal income tax and compulsory contributions (compulsory social insurance, compulsory medical insurance, social insurance) are charged on the payment amount. The reason for dismissal does not matter here. In fact, they can not pay compensation during layoffs only in two cases:
- the vacation period is fully used;
- the laid-off employee is not entitled to it due to insufficient length of service.
The accrual and payment of compensation, as well as the deduction of personal income tax from it, is reflected in the appropriate accounting records:
- DT 20 CT 70 -- compensation payment has been accrued.
- DT 70 CT 68 -- Personal income tax on compensation.
- DT 70 CT 50 (51) -- the actual transfer (payment) of money.
These are the general entries used in business transactions related to compensation for unclaimed leave.
Calculation of compensation payments for unclaimed leave in case of staff reduction
Cash compensation for unclaimed vacation periods is calculated in the same way as vacation pay is calculated. All unspent calendar days of rest and vacation experience are taken into account.
On this moment in case of layoff, the right to full leave arises after working for 5.5 months for one employer in a working year. With less output, payment is calculated in proportion to the time worked.
| Formula for calculating the number of calendar days of the vacation period | Calculation formula compensation payment |
| 2.33 * whole months of work - vacation days used; working half a month is counted as a whole month; less than half a month worked is not taken into account; Example 1. Calculation of compensation payment for 14 days of unclaimed leave in case of staff reduction Manager Sharkovich S.V. was laid off on December 15, 2017. Sharkovich S.V. has been working in the organization since May 30, 2017. She did not use the next paid leave for the working year (from 05/30/2017 to 05/29/2018). The vacation period totals 6 months 16 days, which allows her to take 14 days of rest. Since Sharkovich S.V. is being fired due to staff reduction, she must be paid compensation for unspent vacation days in full (all 28 days of the vacation period). Example 2. Calculation of compensation payments to a laid-off employee with a vacation period of less than 5.5 months Accountant Petrovich V.K. worked for one employer before the layoff for 1 year and 23 days (using rounding - year and month). He never went on vacation. Consequently, he must be accrued and given compensation for unclaimed days of the vacation period. Calculation is performed in the following order:
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