If an employee at the time of dismissal in connection with the liquidation of the enterprise or staff reduction has worked in the company for more than a year and five and a half months, but did not use the right to leave for the second working year, then he is entitled to full compensation for the unused vacation, that is, for all 28 calendar days. The relevant recommendations of Rostrud are contained in Minutes No. 2 dated June 19, 2014 (approved at a meeting of the working group on informing and consulting workers and employers).
Essence of the question
As a general rule, upon dismissal, the employee is paid compensation for all unused vacations (Article 127 of the Labor Code of the Russian Federation). The leave to be replaced by monetary compensation upon dismissal of an employee is calculated on the basis that a full leave 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 leave is granted to him for a 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 vacations, approved by the NKT of the USSR dated 04/30/1930 No. 169 (hereinafter referred to as the Rules). Although this document was adopted more than 70 years ago, it is still applied (in the part that does not contradict the current legislation).
Former position of Rostrud
Earlier, Rostrud explained: clause 28, which provides for the payment of full compensation upon dismissal of an employee in connection with liquidation, who has 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 the compensation for the second working year is paid exclusively in proportion to the hours worked (see Rostrud letters dated 04.03.13 No. 164-6-1, dated 09.08.11 No. 2368-6-1). This means that an employee with 5.5 months of experience in a liquidated company is entitled to receive full compensation, and an employee with 1 year and 5.5 months of experience is paid a smaller amount (in proportion to the hours worked).
New position of the department
Now the specialists of Rostrud have changed their position. The rationale is as follows. Clause 1 of the Rules stipulates: each employee who has worked for this 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 vacation on account of the new working year arises for the employee after 5.5 months from the date of the end of the previous working year. Thus, the entitlement to leave is linked to the employee's working year.
Consequently, even in case of dismissal in connection with the liquidation or reduction of staff, we are talking about the period (working year) for which the leave is granted, and not about the total duration of work for the given employer. That is, full compensation in case of dismissal in connection with the liquidation of an enterprise or a layoff is due to employees who have worked from 5.5 to 11 months in a working year. Accordingly, an employee who has worked in the organization for more than one year and 5.5 months and who is dismissed due to a reduction in staff is entitled to receive full compensation for unused vacation for the last working year. A different interpretation of this norm would mean an unequal position of employees who have worked in the organization for less than a year and have been working for a longer period, experts from Rostrud noted.
During the economic crisis, many enterprises cut their employees to optimize their work. In this regard, for most people, both for the leaders of organizations and for its employees, the question of what severance pay should be paid in case of redundancy, how to calculate it, is very relevant.
Reduction
According to the Labor Code of the Russian Federation, one of the reasons for canceling an employment contract is a reduction in the staff or number of employees of the enterprise.
Downsizing is a reduction in the number of workers in one position. For example, the reduction of three out of eight accountants. And staff reduction is the disbandment of a division 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 guarantees and compensations required upon termination of the employment contract (pay severance pay when an employee is laid off, ensure the preemptive right to remain in office, etc.) . NS).
The reduction procedure involves the following steps:
- publication of an order;
- notifying employees and offering them other vacancies;
- informing the Employment Center and the trade union;
- dismissal of workers (as well as the statutory payment of severance pay in case of redundancy).
Issue of an order
As soon as the head decides to make a reduction at the enterprise, he must issue a corresponding order. The mandatory form of this order is not established by law, but the head must take full responsibility for its preparation.
In the order on the implementation of measures to reduce the enterprise, the date of the upcoming procedure and the changes that are supposed to be made to the staffing table must be stated.
Employee notification
After the manager has issued a reduction order, he must notify in writing of the upcoming dismissal of each employee. At the same time, this must be done no later than 2 months before the dismissal of workers from work.
For each downsized employee, a separate notification is drawn up, which is handed to him personally against signature. This document indicates the date and basis for the dismissal.
Together with the notice of the layoff, the employer is obliged to provide the employee with a list of vacant jobs (if any). If the worker agrees to transfer to a new position, the boss draws up his transfer. The manager is obliged to offer available vacancies as they become vacant until the day the employee is fired.
Informing the employment service and the trade union
In addition to the fact that employees must be directly informed about the dismissal, the employer notifies the Employment Center and the trade union about this fact. The head two months before the proposed dismissal (and in cases of mass layoffs - three months) is obliged to notify the organization of the upcoming event.
At the same time, the trade union should be informed about both the reduction of employees included in it, and about all other dismissed workers.
Dismissal of an employee in case of layoff
Upon the expiration of two months from the date of notification of employees, their employment is terminated directly. To carry out this stage, the head of the organization issues dismissal orders, as a rule, in the form No. T-8. In this order, in the column "Grounds", reference is made to the order to reduce, and if any, to the document in which the employee expressed his consent to the dismissal before the end of the warning period.
On the last working day, the worker must be paid severance pay in case of redundancy and a work book must be issued. As for the entry in it, a corresponding note is made with reference to Art. 81, part 1, item 2, Labor Code of the Russian Federation.
Severance pay
Severance pay in case of redundancy 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 kind of compensation includes the average monthly salary, as well as the employee's average monthly salary for the period of employment, but not more than 2 months from the date of dismissal (taking into account the severance pay).
In some cases, such payments may amount to three average monthly salary: in situations when an employee registered with the Employment Center within a period of up to two weeks from the date of his reduction and was not employed after 3 months.
Severance pay for the reduction of personal income tax is not taxed in accordance with Art. 217, clause 3 of the Labor Code of the Russian Federation. The exception is payments in excess of three months' salary.
By a collective or labor agreement, the amount of compensation in case of redundancy may be set higher than that fixed by law.
Calculation of benefits
Since the payments in question amount to several average monthly wages, the size of the severance pay in case of reduction is calculated in accordance with Art. 139 of the Labor Code of the Russian Federation and the Decree of the Government of Russia No. 922 of 24.12.2007, regulating the calculation of wages.
The average salary of an employee for any mode of work is calculated on the basis of the funds actually accrued to the employee and data on the practically worked time for the previous 12 calendar months.
The calendar month in this case is a period of time from 1 to 30/31 day of the month inclusive, and in February - to 28/29.
The calculation of wages includes all forms of payment permitted by the wage system that are used by the employer in question, regardless of their source. The average salary of an employee cannot be less than the minimum subsistence level established by law.
The amount of cash payments to employees does not depend on their age, length of service or skill level. So, for example, severance pay in case of reduction of a pensioner is calculated on a general basis.
Period and charges included in the calculation
In cases where an employee has been working at the 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, the severance pay. If the worker has not worked even a month before the reduction, then the wage 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 for by the labor legislation of the Russian Federation;
- days on which the employee was on sick leave or received maternity benefits;
- the period of non-fulfillment by the employee of the prescribed work for reasons beyond his control;
- the time of the strike, in which the employee did not participate, but could not fulfill his direct duties in connection with it;
- additional paid weekends for caring for disabled children;
- other periods in which the worker was released from his job duties with full or partial retention of wages or without it.
It should also be noted 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 12 full months, the amounts of such receipts are taken into account in proportion to the hours 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 due severance pay in case of redundancy, at the time of dismissal, the worker is entitled to other payments.
So, for example, the employer can, with the written consent of the employee, dismiss him earlier than the deadline established by the order on the reduction. 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 that remains until the end of the notice of dismissal. Such compensation does not imply that the basic severance pay on redundancy will not be paid.
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 amount of severance pay when reduced for certain categories of employees.
So, for example, compensation for employees working at enterprises located in the Far North or territories equated 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 manual). These employees can be paid compensation for the next months for up to six months by the decision of the employment service if the employee applied to the specified authority within a month from the time of dismissal and was not employed by him.
In situations where seasonal workers are downsized, the benefit in question is two weeks' average earnings.
Other guarantees for employees in case of layoffs
At the same time, that an employee is given severance pay in case of redundancy, the Labor Code of the Russian Federation also provides for other guarantees to employees in case of redundancy. These include, for example, the priority right of certain categories of workers to leave them at their workplace.
So, the manager, choosing from several candidates for dismissal, must take into account that:
2. Preference is given to those workers who have higher 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 is no other person earning money;
- workers who have received injuries or occupational diseases at work;
- disabled people of military operations;
- employees who improve their qualifications at the direction of the employer on the job.
Summing up, the following can be noted:
- in the Russian Federation, the reduction procedure is regulated at the legislative level;
- The Labor Code of the Russian Federation and other regulatory legal acts establish the rules according to which there is a reduction in staff, the payment of severance pay and other compensations to dismissed employees;
- the law establishes the minimum amounts of severance pay and additional payments, but other, larger amounts may be established by a collective or labor agreement.
Sometimes there is a situation when an employee is laid off due to staff reductions. The management of the company 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 cannot be fired.
Initially, it is necessary to clarify that the employer is obliged to announce the dismissal to the employee due to the reduction of staff at the enterprise at least two calendar months before this date. Moreover, the notice must be in writing and the employee is obliged to sign the acquaintance. If this is not done, he has the right to be reinstated in his office according to the law. After that, the company must offer the employee a new vacancy corresponding to his specialty, if any.
After this period expires, the employment relationship between the employer and the employee is terminated and payments are made due to the reduction of staff in the form of an allowance, which is his average monthly salary. This benefit is paid until the employee is employed at a new place of work, but no more than two months from the date of dismissal.
Let's take a closer look at the correct procedure for formalizing the dismissal of an employee and what payments are due in case of redundancy.
Dismissal procedure
This procedure is strictly regulated by law and must be carried out in a clearly consistent manner.
Initially, an order is drawn up for the enterprise on staff reduction. Then happens formal employee notice or employees to dismiss and offer them another vacancy (if any). After that, 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.
The downsizing order has nothing to do with the dismissal order. This is the starting point after which the manager has the right to begin the process of reduction, notifying employees, etc. There is no approved form of 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 the issuance of this order, it is necessary to notify the employee or employees whose positions fall under the reduction, but not less than two months in advance. It is drawn up in writing separately for each employee, in which they must sign for receipt. In the notification must have a date the alleged 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 notification of the employee about the reduction of staff there are no vacancies suitable for him, but these appear later up to the day of dismissal, the company is obliged to offer them to the employee. The employee has the right to agree to 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 time 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 redundancies to the employment service.
With the direct dismissal of an employee an entry is made in the work book that the employment contract was terminated due to the reduction of the organization's staff on the basis of clause 2, part 1 of article 81 of the labor code of the Russian Federation.
And now, in more detail, what payments are due to an employee in case of redundancy.
Allowed payments
According to the Labor Code of the Russian Federation (Article 178), an employee who has lost his position due to a reduction in staff at an enterprise is entitled to an allowance 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 salary and compensation debts for unused vacation.
Within two weeks from the date of dismissal, the former employee has the right to contact the employment service to look for a new job, and if he has not found a suitable vacancy, the company is obliged to pay him another compensation, also equal to the average monthly income. The decision to re-pay the benefit is made by the employment office. 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 for the reduction of an employee are due to him and in what time frame.
- Full repayment of all wage arrears and unused leave no later than the day of dismissal.
- 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 notification and with his written consent. In such a situation, the employee additional monetary compensation is paid 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 replace other benefits provided by the Labor Code.
Sometimes there are special cases when an employee refuses to transfer to another position, and cannot hold the current one for the reason:
- reinstatement to the position of an employee who held it earlier (for example, withdrawal from a decree or a court decision);
- refusal to move to another city where the position is being transferred;
- conscription of an employee into the army;
- changing the employment contract and its terms;
- recognition of the employee as incapable of work.
In this situation, he is also subject to a reduction and is entitled to a two-week average earnings.
How to calculate severance pay?
The calculation of the average monthly salary for calculating 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, the following data must be clearly defined:
- start and end date of the month for which the benefit is paid;
- the number of working days (hours in case of piecework payment) in a month for which compensation is due;
- calculate the average daily earnings (or average hourly).
After receiving all these data, the average monthly earnings are calculated, which is the amount of the severance pay. He is subsequently the due compensation paid to the employee within two months in case he does not find a new place of work.
When calculating the average monthly earnings, a period of 12 months is taken, which preceded the month the employee was fired. For calculation, only those amounts are taken that relate to wages (direct remuneration of the employee's labor) and do not take into account possible compensations that were during the calculation period, namely:
- directly wages (rate);
- additional payments for advanced qualifications of an employee;
- additional payments for the quality, quantity or complexity of labor;
- bonuses and other incentive payments;
- compensation allowances and additional payments directly related to labor (related to the performance of the employee of his labor obligations).
Compensations that are not included in the billing period include those that are not related to the work process. it sick leave payment and compensation for unused vacation, if such was accrued in the period taken for calculation.
The nuances of compensation for the period of employment
In order to get the average earnings due in the second month of employment, former employee must provide evidence that he still hadn't been able to find a new job. A confirmation document in this situation will be a work book, from the records in which it will be seen whether he has already found a job or not.
This reduction payment is compensation to the former employee for the period of employment, respectively, as soon as he finds a new place of work under an employment contract, he loses his right to receive it. That's why average monthly earnings are always paid only at the end of each calendar month from the date of dismissal of the employee to reduce staff. At the same time, if he finds a job in the middle of this period, he is entitled to compensation for the days that he was in search of until the moment of registration at a new place of work.
The severance pay has nothing to do with this - it is compensation for the loss of a job and is paid even if the dismissed employee finds a job the next day.
Legislative aspects
When dismissing employees to reduce staff, there are a number of legislative subtleties and nuances that must be known and followed 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 cut expecting a baby. Even if she works on the basis of a fixed-term employment contract, after providing a 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 way to transfer her to another vacancy.
Also, they do not have the right to dismiss a woman with children under three years of age, a single mother raising a child up to fourteen years old or a disabled child up to eighteen years old in connection with redundancy.
Teachers and other workers in the field of education do not have the right to be laid off before the end of the school year.
With a reduction in staff, if there is a question of dismissal between several employees, there is a moment of pre-emptive right. First of all, it is possessed by employees with higher qualifications or labor productivity. If there are no such indicators or they are equal, then the following have the advantage of staying in office:
- family workers who are the sole breadwinners.
- family workers with two or more dependents.
- workers who have received an occupational disease or work injury at this place of work.
- employees who improve their qualifications on the job.
It is also worth remembering that compensation payments for redundancy are not due to a part-time employee, since he has a main job.
If an employee is laid off after having worked in the organization for less than six months, he are still required to charge compensation for unused vacation.
By agreement of the parties, the employer can dismiss the employee without notice two months in advance with the preservation of 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 takes place as usual.
Going to court
If the employer violates the rights of the dismissed employee when reducing staff, the latter always has the right to go to court. The deadline for filing a statement of claim is thirty calendar days from the date of dismissal (receipt of a copy of the order or work book).
Unfortunately, the facts when the employer, wishing 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 of his own free will, are quite common. That's why you need to know your rights and not be afraid to defend them in court order. If the court finds such a dismissal illegal, the employer will be obliged to reissue the documents and pay all the compensations due, or it is possible to reinstate in the post with the payment of the forced absenteeism.
). The standard compulsory payments that are due to the dismissed include:
- The salary not accrued for the current month.
- Compensation for unclaimed rest days for all paid vacations (Article 127 of the Labor Code of the Russian Federation).
- Severance pay (according to Art. 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. The amount of the payment is charged with personal income tax, compulsory contributions (OPS, OMS, FSS). The reason for the dismissal does not play a role here. In fact, they can not pay compensation in case of redundancy only in two cases:
- the vacation period is fully used;
- the dismissed employee is not entitled to it due to insufficient length of service.
Accrual, payment of compensation, as well as withholding of personal income tax from it is displayed by proper accounting records:
- DT 20 KT 70 - compensation payment has been charged.
- DT 70 KT 68 - personal income tax with compensation.
- DT 70 KT 50 (51) - the actual transfer (payment) of money.
These are the general transactions used in business transactions related to unclaimed vacations compensation.
Calculation of compensation payment for unclaimed vacation in case of staff reduction
Cash compensation for an unclaimed vacation period is calculated in the same way as vacation pay is calculated. All unspent calendar days of rest and vacation time are taken into account.
At the moment, with a reduction, the right to a full-fledged vacation arises already when one employer has worked 5.5 months in a working year. With less output, the calculation of the payment is made in proportion to the time worked.
| The formula for calculating the number of calendar days of the vacation period | Formula for calculating compensation payment |
| 2.33 * whole months of work - used vacation days; working off 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 vacation with staff reduction Manager Sharkovich S.V. will be dismissed on 15.12.2017. Sharkovich S.V. has been working in the organization since May 30, 2017. The next paid vacation for the working year (from 05/30/2017 to 05/29/2018) was not used by her. The vacation experience is 6 months 16 days, which allows her to take 14 days of rest. Since Sharkovich S.V. is dismissed on a staff reduction, the compensation for unspent days of rest must be paid to her in full (all 28 days of the vacation period). Example 2. Calculation of compensation payment to a laid-off employee with a vacation experience of less than 5.5 months Accountant V.K. Petrovich worked for one employer until the reduction of 1 year and 23 days (using rounding - year and month). He never went on vacation. Consequently, he should be charged and compensated for the unclaimed days of the vacation period. The calculation is carried out as follows:
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