The employer is obliged to make all payments to the employee upon dismissal under on their own on the day of dismissal.
Dismissal of one's own free will is the most common ground for terminating an employment contract. This is the less troublesome and most comfortable base.
The employee has the right to resign of his own free will at any time, but after notifying the employer 2 weeks in advance. If the employee is on probationary period, then it is enough to notify the employer 3 calendar days in advance.
The employer's notification of the employee's desire to terminate the employment relationship is the employee's statement with a request to dismiss him of his own free will. In the application, it is necessary to indicate the number from which the employee will no longer come to work.
The wording of the statement should look like this: "I ask you to dismiss me of my own free will on April 15th." That is, on April 15, this employee no longer goes to work, and his last working day is April 14. The employee must submit an application to the employer no later than April 1.
Based on this statement, the employer issues a dismissal order, and produces full settlement with an employee.
What payments are due upon dismissal of their own free will
The employer is obliged to make full payments to the employee on the day of dismissal. As a rule, the day of dismissal and the last working day are the same. Therefore, all payments are made on the last working day.
If these dates do not coincide, then payments upon dismissal of their own free will are made at the written request of the employee on the next day after the receipt of this request.
The employer is obliged to pay the employee:
- wages for the hours actually worked, including the last working day;
- compensation for unused vacation;
- severance pay if it is provided for by a collective or labor agreement.
Wage paid for actually worked days in the month of dismissal. For example, an employee quits on May 25, 2018. His salary is 42,400 rubles. According to the production calendar, there are 19 working days in May. The employee worked for 14 working days. His salary for May will be equal to 42,400 / 19 * 14 = 31,242.10 rubles.
Compensation for unused vacation is paid together with wages... For example, on the day of dismissal, the employee was not on vacation for 6 months and 17 days. As a rule, it is necessary to round up to full months. Since the number of days is more than half a month, then you need to round up. On the day of dismissal, the employee had not been on vacation for 7 months. Hence, he has 28/12 * 7 = 16 vacation days.
His monthly salary is 45,600 rubles. This employee will receive compensation for unused vacation in the amount of 45 600/29, 3 * 16 = 24 901 rubles.
Payment of compensation upon dismissal of one's own free will is made only if it is specified in the collective or labor agreement with the employee. The amount of such an allowance is set, as a rule, by the employer and is not discussed with the employee when concluding an employment contract.
If the provision on severance pay is enshrined in a collective agreement, then the amount is discussed at a meeting of representatives of the employer and employees, and is achieved by agreement.
An employee can quit without working 2 weeks, if he agrees with the employer. If such an agreement is reached, the employee may not go to work the very next working day. In this case, all payments must be made today.
Firing is a process known to almost every adult who has a job. This procedure has great amount various features and nuances. They can be fired by different reasons... Termination of labor relations at the initiative of the employee is more and more common. How does this process take place? And what payments are due in this or that case upon dismissal of their own free will? We will have to answer these questions further. If the employer does not settle accounts with his subordinates, the dismissal will be considered violated. This can lead to a number negative consequences for the former boss.
When can I quit
It is necessary in advance to think about what payments a citizen is entitled to receive upon dismissal of his own free will. But before the calculation, the employee must tell the employer about his intentions. When is it allowed to terminate an employment contract?
Anytime. Each subordinate can quit when he sees fit. This right is regulated by the labor legislation of the Russian Federation. At their own request, it is allowed to quit not only in work time but also on vacation. There are no restrictions on this. Unless the employer must be notified in advance of their intentions.
Testing
Upon dismissal of their own free will, payments to one degree or another are due to everyone who leaves work. They are made after the entry into force of the application of the established form. As already mentioned, it is necessary to inform the employer in advance about the plans to leave the company. According to the law, a citizen will have to work 14 days after submitting an application in the established form for termination labor relations.
Working off is a mandatory item upon dismissal. However, sometimes you can get rid of it. For example, agree with the employer or go on vacation, while simultaneously submitting a letter of resignation. This or that decision will slightly affect the amount of payments.
If a new employee wants to quit while on probation, he will have to notify the employer 3 days before leaving work. Payments will still be due to him.
When is the calculation made
Next important nuance- when a person receives money from the employer, due to him by law. This must be remembered by every subordinate.
Payments after dismissal of their own free will are provided on the day the termination order comes into force. It is impossible to demand funds immediately after submitting an application of the established form. Indeed, throughout the entire working off, the employee can change his mind and pick up the document.
If at the time of termination of labor relations the person was not at the workplace, the calculation is made no later than the next day after the request of the former subordinate for the due money.
List of mandatory payments
What payments upon dismissal of their own free will are due to a citizen in an organization? There are compulsory and optional compensations. Let's start with what is provided to each subordinate.
So, compulsory payments in the event of termination of employment at the initiative of the employee include:
- calculation for the worked time;
- payments for unused vacation.
There are no more mandatory payments. What is meant by each item?
Time worked
Upon dismissal of his own free will, payments for the time worked by a citizen is a mandatory payment. It is laid down for the days in a given month that a person spent in the company, fulfilling his job duties... The calculation is made in the accounting department according to a special certificate.
A citizen is paid a salary in the form of payments for hours worked in a month. For example, an employee receives a salary of 40,000 rubles. In March, he worked 10 days out of 20 workers, quitting on March 20. Then the employee is entitled to 20 thousand rubles when leaving work.
Vacation
The following payments are due upon dismissal of their own free will to almost all subordinates. Most often they occur. We are talking about payments for unused vacation. By law, every employee is entitled to a paid annual vacation.
If the citizen did not receive it, but decided to quit, it is possible to demand appropriate compensation from the employer. In this case, the period that a person spent at the workplace without a vacation is rounded up according to the usual mathematical rules. This means that when working for 6 months and 20 days, it can be assumed that the subordinate did not rest for 7 months. If the employee worked for 5 months and 4 days, only 5 months are taken into account.
The calculation is made taking into account the unused vacation days and the citizen's salary. Usually, upon voluntary dismissal, payments for rest and for hours worked are made at the same time.
Compensation
We sorted out the obligatory cash. Dismissal took place of your own free will? What payments are due to some employees?
A number of citizens, under certain circumstances, can count on the payment of the so-called compensation. Its size is set directly by the employer. Usually, compensation is not negotiated with subordinates.
This payment is extremely rare in Russia. Only employees, in the contract with which these funds are prescribed, can apply for compensation.
In some cases, severance pay is assigned at a general meeting in the amount agreed upon with subordinates. This money will be issued without fail upon termination of employment.
Dismissal procedure
Now it is clear what payments upon dismissal of their own free will are due to the employee in this or that case. How do you get them? What is the procedure for terminating relations between employers and subordinates?
A citizen who decides to quit must adhere to the following algorithm of actions:
- Write a letter of resignation. Give it to your boss 14 days before the wish takes effect.
- Work 2 weeks legally. You can go on sick leave or vacation in order not to work out the allotted time.
- After 14 days, the employer issues a dismissal order. The citizen gets acquainted with him and signs. If the employee refused to get acquainted with the document, the chief draws up an act.
- On the last working day, the subordinate takes the work book from the employer with a record of the termination of the relationship, the pay slip and signs the receipt of the papers.
- In the accounting department, using the issued leaflet, payments are calculated upon dismissal of their own free will with the issuance of the required funds. It is necessary to sign the receipt of money in a special journal.
That's all. As soon as the subordinate received all his papers and funds, he can be considered dismissed. But that's not all.
Sick leave
If a citizen falls ill within a month from the date of dismissal, he can demand from the former boss a sick leave payment on a certificate of incapacity for work. Only these Money there are certain features.
Namely:
- on a certificate of incapacity for work, sick leave can only be obtained by citizens who do not work after dismissal;
- the sheet is presented no later than six months after the termination of work in a particular company;
- the amount of payments is 60% of the salary.
Important: work experience in this situation is not taken into account. Disability certificates issued to close relatives are not paid. This is a normal, legal phenomenon.
Retention
Dismissal took place of your own free will? What payments are due to a citizen in this case? Answer to this question won't give you any more trouble. It should be remembered that each employee receives compensation for vacation and hours worked without fail. But under certain circumstances, the employer can withhold some of the funds. What is it about?
Withholding payments only applies to unused leave. If an employee has booked a vacation in advance, no compensation is due. Moreover, the subordinate must pay 80% of the vacation payment in advance on his own. According to the law, the employer has the right to withhold 20% of the salary.
Therefore, sometimes, upon dismissal of their own free will, payments are issued in incomplete amounts. Withholding is the employer's right. But it is forbidden to withhold funds without reason.
Outcomes
Was the dismissal of your own free will? What payments are due to a subordinate? The answer to this question shouldn't be too much trouble. What are the deadlines? Voluntary dismissal payments are due on the day of termination of employment. Or one day after the person applied with the statement of calculation.
No more money is required by law to terminate the relationship between a subordinate and an employer. You cannot demand them. But it should be remembered that every boss is obliged to provide payments both for hours worked and for unused rest. Anyone can claim these compensation.
In fact, remembering what payments are due upon dismissal of their own free will is easier than it seems. There are not so many payments, they are calculated taking into account the employee's salary and the number of days worked / available rest days.
If your employee decided to say goodbye to your organization or your organization to him, then on the date of dismissal he will probably have days of unused vacation. In this regard, an employee, at his request, may be granted leave with subsequent dismissal (except in the case of his dismissal for guilty actions). And then the day of dismissal will be the last day of the employee's vacation. Or, instead of vacation, the employee can be paid compensation for vacation according to the Labor Code of the Russian Federation (Article 127 of the Labor Code of the Russian Federation,).
Vacation compensation is accrued to the employee for all vacations unused by him. That is, the employee will have to receive compensation for unused additional vacation upon dismissal on a par with compensation for unused basic vacation (Article 127 of the Labor Code of the Russian Federation). In this case, the basis for terminating the employment contract does not matter (Letter of Rostrud dated 02.07.2009 N 1917-6-1).
How to calculate compensation for unused vacation
The first thing to do when calculating compensation for unused vacation is to determine the employee's vacation experience.
For each fully worked year, the employee is entitled to compensation for a full annual paid vacation - by general rule 28 calendar days (Article 115 of the Labor Code of the Russian Federation). For an incompletely worked year, the number of unused vacation days for which compensation must be paid is determined in proportion to the hours worked.
So how do you count the days to compensate for your unused vacation? If the employee worked without vacation at his last place of work for less than 11 months, and he was entitled to vacation in calendar days, then the number of vacation days unused by him is determined as follows:
In this case, the indicator "Number of months of work with this employer" is considered taking into account next rule(Clause 35 of the Rules, approved by the National Committee of the USSR on 04/30/1930 N 169):
- if a half-month or more has been worked, this month is taken into account in the calculation as a whole;
- if less than half a month has been worked out, then this month is not taken into account.
Thus, compensation for unused leave upon dismissal in 2019 is not paid if the employee has worked at the last place of work for less than half a month, or if on the date of dismissal all vacations he has taken off.
Of course, as a result of calculations using this formula, you may not get an integer. Then the value can be rounded, but not according to the rules of mathematics, but always in the bigger side, i.e. in favor of the employee (Letter of the Ministry of Health and Social Development of the Russian Federation of December 7, 2005 N 4334-17).
When the number of unused vacation days has been established, you can proceed to calculating the compensation for unused vacation time upon dismissal.
In turn, the average daily earnings of an employee is determined in the same way as when calculating vacation pay (clause 4 of the Regulations, approved by the Decree of the Government of the Russian Federation of 12.24.2007 N 922).
Generally, leave compensation upon dismissal is calculated according to the formulas given above. But for a number of cases, there are rules for determining compensation for unaccompanied vacation.
How to calculate vacation compensation in working days
Some employees, in accordance with the requirements of the Labor Code of the Russian Federation, are granted leave during working days. These are workers with whom labor contracts have been concluded for a period of up to 2 months (Article 291 of the Labor Code of the Russian Federation), as well as seasonal workers (Article 295 of the Labor Code of the Russian Federation). How is the leave leave compensation calculated for them? The compensation itself is the same as when calculating compensation for calendar days. That is, as the product of the number of unused vacation days by the average daily earnings. But the number of days of unused vacation is determined by a different formula:
Special rules for calculating vacation compensation upon dismissal
Rule 1. If an employee has worked in an organization from 11 to 12 months, then he must receive compensation for a full working year, that is, for the entire annual paid leave (clause 28 of the Rules, approved by the NKT of the USSR on April 30, 1930 N 169, Rostrud letter dated December 18 .2012 N 1519-6-1). An exception is the case when the employee's vacation record was 11 months as a result of rounding.
Rule 2. An employee who has worked in the organization from 5.5 to 11 months is paid compensation for the entire annual leave if he was dismissed (clause 28 of the Rules, approved by the NKT of the USSR on 04/30/1930 N 169, Rostrud letter of 08/09/2011 N 2368-6-1):
- in connection with the liquidation of the employing organization;
- staff reduction;
- due to some other circumstances (for example, due to conscription).
This rule applies only if the employee has worked for this employer for less than a year. Otherwise, when calculating compensation for vacation, the formulas specified in the previous sections are applied (Rostrud Letters dated 04.03.2013 N 164-6-1, dated 09.08.2011 N 2368-6-1).
So, taking into account the above requirements, the amount of vacation compensation upon dismissal in 2019 is determined, despite the fact that the "Rules on regular and additional vacations", to which we have already referred more than once, were approved back in 1930 (although, of course, they have gone through several revisions since then).
Below is the calculation of compensation for unused leave upon dismissal (example).
Unused Leave Compensation 2019: Calculation
Engineer Krasil'shchikov A.N. resigns from Kaleidoscope LLC on May 31, 2019. He has been working in this organization since February 12, 2018. In 2018, he was granted 14 calendar days of paid annual leave. In accordance with the Regulation on the payment of vacations of LLC Kaleidoscope, the number of days of unused vacation is rounded up to the nearest integer when calculating.
The average daily wage of an employee is 1,622 rubles.
For the period starting from February 12, 2018 Krasilshchikov A.N. worked in the organization for 1 year (02/12/2018 - 02/11/2019), 3 months (02/12/2019 - 05/11/2019) and 20 days (05/12/2019 - 05/31/2019). Since his last working month has been worked for more than half, in the calculation it is taken as a whole month. That is, the period of work of an engineer at Kaleidoscope LLC for the purpose of calculating compensation is 1 year and 4 months.
The number of vacation days unused by him will be: 23.3 days. (28 days + 28 days / 12 months х 4 months - 14 days). Adjusted for rounding: 24 days
Compensation for non-part-time vacation upon dismissal in 2019 is equal to: 38,928 rubles. (24 days x 1622 rubles)
Unused vacation compensation: when paid
The employer must pay the employee in full on the day of his dismissal, that is, on the last day of his work (Article 140 of the Labor Code of the Russian Federation). During this period, the employee must be paid the salary and bonuses due to him, compensation for unused vacation, as well as other compensations provided for by legislation, labor or collective agreements, local regulations.
Cash compensation for unused leave without dismissal
In the current difficult economic situation, many are interested in how to get compensation for unused vacation, if the employee is not going to quit. But before answering the question - how, you need to understand - is it possible to receive compensation for unused vacation without dismissal.
Replacing the vacation with monetary compensation is allowed in the case when the employee is entitled to vacation lasting more than 28 calendar days, and he himself expressed a desire to receive compensation instead of the vacation provided in excess of these 28 days (Article 126 of the Labor Code of the Russian Federation). To do this, he must write a statement. but the last word it still remains with the employer: it is he who decides whether to send the employee on vacation or pay him monetary compensation for unused vacation. There are also courts that support this position (Determination of the Supreme Court of the Komi Republic from 15.08.2011 N 33-4410 / 2011).
Taking into account the above, the due to the employee can be replaced by compensation (Article 126 of the Labor Code of the Russian Federation). Since it is provided in excess of the main leave of 28 calendar days (Article 115 of the Labor Code of the Russian Federation).
If you, as an employer, decide to satisfy the employee's request, you must issue an order to replace part of the leave with compensation. There is no approved form for such an order, so it is drawn up in any form.
Order to replace vacation with monetary compensation (sample)
Society with limited liability"Kaleidoscope"
ORDER
06/04/2019 N 10-hp
Moscow city
About replacing part of the vacation with monetary compensation
In accordance with Art. 126 of the Labor Code of the Russian Federation
I ORDER:
Leading engineer G.N. Kurguzov replace with monetary compensation a part of the annual paid leave granted for the period from 03/23/2018 to 03/22/2019, exceeding 28 calendar days, in the number of three calendar days.
Reason: statement of G.N. Kurguzov from 31.05.2019 N 2.
General manager(signature) Zlobin I.V.
I have read the order:
lead engineer 04.06.2019 (signature) G.N. Kurguzov
Compensation instead of vacation in HR documents
If you decide to pay the employee, at his request, compensation for a part of the unused vacation, then this fact must be reflected in the employee's personal card. In the form N T-2 (approved by the Decree of the State Statistics Committee of the Russian Federation of 05.01.2004 N 1), Section VIII "Vacation" indicates:
- in column 4 "Number of calendar days of vacation" - the number of days replaced by compensation;
- in columns 5-6 "Start date" and "End date" - a comment that the days of vacation have been replaced by compensation;
- in column 7 "Grounds" - an order (with details) to replace the vacation with compensation.
In the vacation schedule in the form N T-7 (
After the order for dismissal has been issued, the question arises: what payments upon dismissal does the legislation provide? The Labor Code of the Russian Federation contains rules regarding monetary compensation upon dismissal for vacations that have not been used, severance pay and salaries for hours worked. Payment of money after dismissal must be made within a period not exceeding three days after the order is issued.
Amount of compensation upon dismissal
The dismissal procedure consists of several stages:
- Writing a statement (if it is of your own free will).
- Issue of an order.
- Settlement with an employee and issue work book.
So, what is eligible for dismissal of your own free will?
An employee has the right to claim the following payments:
- salary for hours worked;
- compensation for vacations that have not been used;
- thirteenth salary (if this is stated in the local acts of the organization).
Compensation for leave that was not used by the employee should be carried out according to the following formula:
K-compensation for vacation that was not used by the employee;
M is the employee's average daily wage;
N is the number of vacation days.
N is defined as follows:
2.33 * number of months worked for which no vacation was granted.
For reference! This formula approved by the Ministry of Labor of the Russian Federation and is used, as a rule, to calculate the usual calendar vacations at 28 days. If it comes about longer vacations, we recommend that you contact the labor inspectorate for clarification or divide total amount vacation days by the number of months worked. In addition, the calculation does not take into account the month in which less than half of the days were worked.
M is defined in the following way:
M = C / 12 * 29.4, where
C is the employee's total income for the calendar year that preceded the dismissal.
Payments to an employee upon dismissal of their own free will and for other reasons must be made on time. The legislator establishes a rule according to which the employer pays the employee compensation in the amount of at least 1/300 of the refinancing rate, which is set by the Central Bank of the Russian Federation on the day of accrual in the event that he did not settle with the dismissed on time.
The compensation is calculated in the following way:
K = C / 100% * 1/300 * S * D, where
K compensation;
C-refinancing rate;
S is the amount owed by the employer to the employee;
D is the number of days overdue.
At the same time, the calculation of payments upon dismissal will not be affected by what remuneration system is used in the company: salary, piecework, on the basis of hourly, daily or monthly tariff rates... However, all these systems still have their own characteristics in the calculation. Therefore, the above formulas are applicable insofar as they do not contradict the legislation and correlate with the wage system at the enterprise.
Settlement period with the dismissed employee
Payment of money upon dismissal, in accordance with the provisions of Art. 140 of the Labor Code of the Russian Federation, carried out on the last day of a citizen's work. But if the employee was absent from the workplace on the last day, then settlement with him is made no later than the day that follows the day the employee applies for payments. If the parties do not reach an agreement on the final amount, then the employer is obliged to pay that part of the money that he does not dispute.
When an employee goes on vacation with subsequent dismissal, that is, he is no longer going to work at the enterprise, then the last day before the vacation will be considered the settlement day. The employer is obliged to give the employee a work book and calculate all payments.
If an employee is on sick leave and decided to quit, then he has the right to write a statement any day. The employer makes payments to him on the last day of work, even if he falls on sick leave.
Difference between compensation and severance pay
The severance pay will not apply to wages, as its size has nothing to do with the quality and duration of the employment relationship. Moreover, the benefit is not a compensation payment either. Allowance is a monetary allowance that temporarily replaces wages or serves as an addition to the basic income, or acts as an aid due to the lack of a source of income. The severance pay is paid only from the funds of the employer and in no case will it relate to social payments that are carried out at the expense of the state. Despite the general legal basis - dismissal, benefits and compensations, the circumstances of payments differ. In particular, if we are talking about compensation, then they are due to all employees, regardless of the reason for dismissal. For example, compensation for unused vacation will be paid to a citizen even if he was fired due to a layoff or of his own free will. But in order to receive severance pay, you need to get into certain legal situations, the list of which is established in the Labor Code of the Russian Federation. For example, dismissal due to liquidation of a company or refusal to transfer to another location.
The second difference between compensation and benefits is that, as a rule, the size of the severance pay is set in the Labor Code of the Russian Federation - the average monthly salary, etc .; but the amount of compensation for unused vacation has only a calculation formula, but the result may be different, since it is not known in advance for what period the employee did not take vacation, etc.
Thus, the dismissal of an employee without payment of benefits is possible, but without compensation - in exceptional cases.
Amount of severance pay upon dismissal
The legislator, in Article 178 of the Labor Code of the Russian Federation, provided for the payment of severance pay to employees in a certain amount for certain cases of dismissal. In particular, these include the following:
- Average earnings for 2 weeks:
- in case of refusal of a citizen to be transferred to another job, which is due to him for health reasons or if the employer does not have such a workplace;
- when conscripted for military or alternative civilian service;
- when an employee is reinstated at a job that he performed earlier;
- if the citizen refuses to transfer to another locality, if the employer moves there;
- when the terms of the contract are changed and the employee subsequently refuses to continue working on such conditions;
- when an employee is issued an opinion from a medical organization that he cannot continue his labor activity;
- if a citizen is busy on seasonal work, but the employing organization was liquidated or there was a reduction in the number of employees.
- Average monthly earnings are paid in the following cases:
- liquidation of an enterprise;
- staff reduction;
- in case of violation of the procedure for concluding an employment contract by the employer, if such violations do not allow further work to be continued.
For reference! Employees who work in organizations located in the Far North are equated to all other residents of the Russian Federation in terms of severance pay.
- Three month average earnings will be paid in the following cases:
- upon termination labor contract with the head of the company, his deputy, chief accountant due to the fact that the owner of the enterprise has changed;
- upon termination of the employment contract with the head of the organization by decision authorized body in the absence of any culpable activity on his part.
The severance pay, the payment of which is provided by the legislator (in the amounts established by the Labor Code of the Russian Federation), is not subject to personal income tax and other taxes. However, if a citizen pays alimony, then they are recovered from the amount of the benefit.
An example of the payment of severance pay upon liquidation of an organization.
- On the last working day, a citizen receives 1 average monthly wage. At the same time, the amount of payments does not depend on whether the employee gets a new job.
- At the end of the 2nd month after dismissal, the employee can bring the employer a work book, in which there is no mark of new employment, and receive another average monthly earnings.
- At the end of the 3rd month, the benefit will be paid if two conditions are met simultaneously:
- the citizen, no later than 14 days after he quit, registered with the employment service;
- for 3 months they did not find a job for him.
Severance pay upon dismissal by agreement of the parties
The employee and the employer have the right to sign an agreement that will determine the conditions for terminating the employment relationship. In the document, the head of the company has the right to assign any amount of severance pay to the employee, at his discretion.
Now let's look at this issue in more detail.
To begin with, the agreement that terminates the employment contract is not his part of; that is why, if the text of the agreement or the collective agreement does not specify the severance pay, the amount of which is determined by the employer, then taxes will be charged on this payment.
What to do?
- Prescribe in the text of the labor contract the wording according to which the employer has the right, upon dismissal of the employee, to assign him severance pay in any amount. If the contract has already been concluded, we draw up an additional agreement to it. In this case, the text of the document may contain an indication of a specific amount of the benefit (for example, 50,000 rubles) or its linking to a salary, other payments (for example, in the amount of 5 salaries).
- Indicate the severance pay and its amount in the collective agreement.
We remind you once again that the payment should only be called severance pay and nothing else, since in jurisprudence there were various names, for example, compensation for dismissal by agreement of the parties, etc.
Receiving payments upon dismissal of their own free will is the right of any employee, and these include not only wages for the worked period, but also a number of other charges.
Knowing and being able to defend your rights are important skills that will allow you to receive from the employer the full amount of money that is required by law.
Upon voluntary dismissal, the process of termination of employment is initiated by the employee of the organization.
According to the labor legislation of Russia, after notifying the employer of the intention to quit, you need to work for another two weeks, during which he has the opportunity to find another person for the vacated position.
By mutual agreement of the parties to the employment contract, the term may be reduced. In any case, the first document for registration of dismissal is a written statement.
It is also important for a resigning employee to keep in mind that he can withdraw his application until the expiration of the prescribed two weeks of work. This possibility is provided for by law, so the employer has no right to refuse, even if he has already found a replacement employee (except for the case when a new employee cannot be refused - for example, when transferring from another enterprise).
In order to avoid trampling on his rights, the employee must notify of the refusal to dismiss also in the form written statement, which can later be used as evidence of violation of his rights in the forced termination of the employment agreement.
When the relationship is terminated, the work book is filled in and returned to the employee along with other documents (for example, a diploma of higher education) stored in the organization.
Dismissal during probation
The probationary period is the period during which the employer assesses how a particular employee is suitable for the position, and the employee, in turn, assesses whether his expectations about work responsibilities coincide with reality.
The main feature of voluntary dismissal during the probationary period is the shortened period for considering the application. In particular, the employer must consider the application within three days, and has no right to delay this period.
The duration of the probationary period is set at labor agreement or an annex to it. As a general rule, it cannot exceed three months. However, for executive positions, this period can be increased to 6 months.
For fixed-term employment contracts of up to 2 months, a probationary period cannot be established in principle, and for contracts up to six months, the maximum trial period is two weeks. In any of the above cases, the employee is not required to disclose the reasons for his dismissal, and has the right to terminate the employment contract at any time.
Probationary workers have the same right to termination benefits as ordinary employees of the organization.
What should be paid to an employee?
Consider what calculated payments upon dismissal of their own free will the employer must pay.
According to labor law, a resigning employee is entitled to two compulsory types of payments:
- salary for the worked period;
- compensatory payment for unused vacations.
Salary should include not only the salary, but also all allowances, bonuses, etc. stipulated by the contract or local regulations. With regard to compensation for vacations (vacation pay), there are two options for the development of the situation: the employee either agrees to the payment, or takes a vacation with subsequent dismissal. In the second case, the final settlement with the employee and the return of the work book must be carried out before he goes on vacation.
Rarely are situations when an employee takes a sick leave during vacation - in such a situation he is entitled to a temporary disability benefit, but the vacation period for sick days is not extended. Collective bargaining agreements may provide for other types of payments due to departing employees, but such contracts are rare.
Severance pay is not eligible for voluntary dismissal - labor law regulates its payment only when a company is liquidated or the staff is laid off.
Payout calculations with examples
Payroll preparation
The salary paid upon dismissal depends on the payment system adopted at the enterprise. Examples:
- Time system- in this case, payment is made for the days worked. If the salary was 25,000 rubles, and 12 out of 22 working days were actually worked, then the salary at the time of dismissal would be: 25,000 / 22 * 12 = 13,636 rubles.
- Piece-piece system- with such a system, it does not matter how many days the employee has worked. The results of his labor are measured in specific physical indicators, for example, in units of manufactured products. Suppose that in the month in which the employment contract is terminated, the employee has made 25 products, and the rate for each of them is 400 rubles. Then the salary due to him will be: 25 * 400 = 10,000 rubles.
In practice, any other payment system can be used - piece-rate-variable, piece-rate-progressive, bonus, etc. However, the above forms are most common.
Calculation of compensation
Calculation of compensation for unused vacation is a more time-consuming process - accountants most often use special software for this.
In a simplified form, it can be represented as the following sequence of actions:
- Determination of the length of service for granting leave. To do this, the date of employment is subtracted from the date of dismissal. Periods of being on administrative leave at their own expense over 14 days are also excluded from the length of service. It turns out a certain number of full months and days, which are rounded according to the following principle: less than 15 days - downward, more than 15 days - upward.
- Calculation of the prescribed number of vacation days based on the length of service and the provisions of the employment contract.
- Determination of the number of unused vacation days by subtracting the actual vacation used from the calculated value.
- Calculation of the average daily earnings: the wages for the previous 12 months divided by the hours actually worked for the given period.
- Calculation of compensation.
For example, an employee was hired on 08/13/2015 and fired on 09/16/2016. He did not take vacations at his own expense, which means that the work experience was 13 months and 10 days. For the purpose of calculating compensation, the period is 13 months (rounding down).
According to labor contract, the employee is entitled to 36 days of vacation, then the vacation he is entitled to will be 36/12 * 13 = 39 days. In fact, he used 15 days in June 2016, then the number of unused is 39 - 15 = 24 days. The salary for the previous year was 460,000 rubles, the period has been fully worked out (except for vacation time).
Then the average earnings per day will be: 460,000 / (29.3 * 11 + 29.3 / 30 * 15) = 1,365.19 rubles, where 29.3 is the average number of days in a month (according to the Labor Code of the Russian Federation), 30 is the number days in June 2016, 15 is the actual number of days worked in June 2016. Thus, compensation for unused vacation will be: 1365.19 * 24 = 32764.56 rubles.