Our plant is undergoing a procedure for reducing the number of employees on December 2 of this year. The employee is being dismissed early on November 16, 2014. (Clause 2.Article 81 of the Civil Code of the Russian Federation), which works on a sliding schedule. Please provide clarification on the procedure for calculating the days remaining until the day of reduction (from 11/17 to 12/02/2014). We must calculate the number of days according to a sliding schedule or production calendar.
The rationale for this position is given below in the materials of the Glavbukh System
1. Article: Abbreviation: difficulties in calculating benefits
Officials gave clarifications
It is safe to say that both the Labor Code of the Russian Federation and Regulation No. 922 regulate cases of calculation and payment of average earnings when a person works under an employment contract and missed working (calendar) days are subject to payment.
However, the payment of severance pay in the event of liquidation or workforce reduction is not related to the payment of such days. Here you actually need to pay the average amount of monthly income, something vaguely reminiscent of your thirteenth salary. How to calculate this amount? Official clarifications no on this score. In private answers to this question, officials from the Russian Ministry of Health and Social Development and Rostrud say that it is necessary to pay for the first month after dismissal. They propose to determine the average daily earnings based on the employee’s wages for the 12 months preceding the month of dismissal and the number of days worked by him in this period. After this, the average daily earnings are multiplied by the number of working days according to the five-day calendar working week* in the first calendar month after dismissal.
I. O. Chvykov
leading expert of the magazine "Accounting in Production"
Magazine "Accounting in Production", No. 2, II quarter 2009
2. Decision of the Dzerzhinsky District Court of Novosibirsk dated April 20, 2012 No. 2-442/12
“Chapskaya L.M. after clarification, she filed a lawsuit against OJSC "M" for the recovery of unpaid Money in connection with dismissal, monetary compensation and moral damage, motivating the following.
Since October 30, 2008 Chapskaya L.M. was hired at OJSC M, in workshop 740, hotel No. 1, as a second-class watchman. An employment contract No. 1392 dated October 30, 2008 was concluded with the plaintiff for an indefinite period, with the start of work on October 30, 2008, with piecework wages and the rate was 25.97 rubles per hour.
By order of October 31, 2011, the plaintiff was dismissed due to a reduction in the number of employees. The average monthly salary of the plaintiff is 23,630.23 rubles. However, the plaintiff was paid only 6,459.60 rubles. The final settlement with the plaintiff was not made; the amount of debt amounted to 17,170.63 rubles. The plaintiff's last working day is considered to be October 31, 2011; the payment in the amount of 6,459.60 rubles was made on November 11, 2011, i.e. the delay in payment was 11 days. Since the debt in payment amounted to 17,170.63 rubles, which has not been paid to date, the delay in payment of the remaining amount is 30 days.
Amount of monetary compensation due for delay total amount calculation is 7,148.14 rubles, the amount of monetary compensation for the underpaid amount upon dismissal in the amount of 17,170.63 rubles is 9,004.3 rubles. The total monetary compensation is 16,152.44 rubles.
On December 2, 2011, December 12, 2011, and January 12, 2012, the administration of M paid the plaintiff 7,000 rubles, 382.40 rubles and 14,105.44 rubles.
Severance pay in the amount of average monthly earnings for the second month from the date of dismissal for the period of employment for the period from November 30, 2011 to December 31, 2011 in the amount of 23,630.23 rubles was also not paid by the defendant.
Since the plaintiff was registered with the employment office from November 1, 2011 to January 31, 2012, the administration of M paid monetary compensation in the amount of 4,960.20 rubles for the third month on February 3, 2012, instead of the average monthly earnings in the amount of 23,630.23 rubles . In total, the defendant's debt to the plaintiff amounts to 47,435.42 rubles.
The unlawful actions of the defendant caused her moral damage in the amount of 20,000 rubles.
Therefore, the plaintiff asked to recover from the defendant unpaid monetary compensation in the amount of 23,630.23 rubles for the second month of dismissal, unpaid monetary compensation for the third month of dismissal in the amount of 42,300.46 rubles, monetary compensation in the amount of 59,118.73 rubles for the delay in payment of settlement dismissal, moral damages in the amount of 20,000 rubles.
The defendant OJSC “M” filed a counterclaim against L.M. Chapskaya. for the recovery of overpaid benefits. In support of the counter-statement, the defendant stated the following.
According to the calculation of average earnings, the average hourly earnings of Chapskaya L.M. as of October 31, 2011 is 38.45 rubles. The work schedule for November 2011 and subsequent months for the guards of Hotel No. 1 could not be due to their layoff from the enterprise, the calculation of severance pay by L.M. Chapskaya, in the amount of average monthly earnings upon dismissal due to staff reduction, had to be carried out taking into account the worker’s standard time according to the production calendar*: in November 2011 - 167 hours (38.45x167=6421.15 rubles), in December 2011 - 176 hours (38.45x176=6767.2 rubles), in January 2012 - 128 hours (38.45x128=4921.6 rubles).
From the pay slips it follows that the defendant paid the plaintiff: - severance pay in the amount of 13,842 rubles based on 360 hours instead of 167 hours, thus the overpaid amount amounted to 7,420.85 rubles;
Average monthly earnings saved for the period of employment for the second month from the date of dismissal in the amount of 14,105.44 rubles, based on 368 hours, place 176 hours, the overpaid amount amounted to 7,338.24 rubles;
The average monthly salary saved for the period of employment for the third month from the date of dismissal is 4960 rubles, the overpaid amount was 38.4 rubles.
In total, the amount overpaid in the period from November 2011 to February 2012 was 14,797.49 rubles. Therefore, OJSC “M” was asked to recover from Chapskaya L.M. the specified amount.
After listening to the plaintiff, the defendant's representative, and examining the case materials, the court comes to the following conclusion.
At the court hearing, it was established that the plaintiff had been in an employment relationship with OJSC “M” since October 30, 2008, in the position of a watchman under an employment contract (24). Based on the employment contract (case sheets 21-23), the working hours have been set to shift since 08 -00 o'clock until 08-00, 24 hours a day. The employee is provided with a time-based bonus system of remuneration, the salary is 2,670 rubles.
In accordance with the agreement on the addition (change) of the employment contract dated October 30, 2008 No. 1392 dated February 1, 2010, the labor system is established as a time-bonus, hourly tariff rate– 25 rub. 97 kopecks (case sheet 25).
According to the extract on the remuneration system of OJSC "M" for the period XXX-2013. (case file 54) the enterprise has introduced summarized recording of working time. The accounting period is a quarter. The total number of working hours according to the schedule for the accounting period should not exceed the norm for the same period of time according to the production calendar.
According to order No. 1 558l/s dated October 31, 2011 (case sheet 26) Chapskaya L.M. dismissed on October 31, 2011 due to a reduction in the number or staff of employees, with payment of severance pay in the amount of monthly average earnings, clause 2 of Art. 81 Labor Code of the Russian Federation
In accordance with Art. 81 of the Labor Code of the Russian Federation, an employment contract may be terminated by the employer in the following cases: reduction in the number or staff of employees of an organization, individual entrepreneur.
Based on the norm of Article 178 of the Labor Code of the Russian Federation, upon termination of an employment contract in connection with the liquidation of an organization (clause 1 of part one of Article 81 of this Code) or a reduction in the number or staff of the organization’s employees (clause 2 of part one of Article 81 of this Code), the dismissed employee is paid severance pay in the amount average monthly earnings, and also retains the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).
In accordance with Art. 139 of the Labor Code of the Russian Federation, for all cases of determining the amount of average wages (average earnings) provided for by this Code, a uniform procedure for its calculation is established. In any mode of operation, the average salary of an employee is calculated based on the salary actually accrued to him and the time he actually worked for the 12 calendar months preceding the period during which the employee retains his average salary. In this case, a calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive).
The specifics of the procedure for calculating average wages established by this article are determined by the Government Russian Federation taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations.
According to clause 13 of the Regulations on the specifics of the procedure for calculating average wages (as amended by Decree of the Government of the Russian Federation of November 11, 2009 N 916), when determining the average earnings of an employee for whom a summarized accounting of working time is established, except in cases of determining the average earnings for vacation pay and compensation payments for unused vacations, average hourly earnings are used.
Average earnings determined by multiplying the average hourly earnings by the number of working hours according to the employee’s schedule in the period subject to payment.
In accordance with the working time sheets (95-107) Chapskaya L.M. for the 12 calendar months preceding the dismissal, she worked 4,561 hours, and based on the salary certificate on the ld. 9 for the same period Chapskaya L.M. wages were accrued in the amount of RUB 283,562.7. Based on the above, the average hourly earnings of Chanskaya L.M. amounted to 62.17 rubles. (283,562.7/4,561).
According to the production calendar for 2011 and 2012, in November 2011 the standard working time was 167 hours, in December -176 hours, in January 2012 -128 hours.
Thus, the defendant had to pay Chapskaya L.M. severance pay in the amount of RUB 29,282.07 in total. (167Х62.17+176Х62.17+62.17), however, based on the calculation sheets of Chapskaya L.M. paid 32,907 rubles, that is, 3,624.93 rubles. paid in excess of what was due.
As for the requirements of Chapskaya L.M. regarding the collection of interest for the delay in payment of the settlement, the court comes to the following conclusion.
In accordance with Art. 140 of the Labor Code of the Russian Federation, upon termination of an employment contract, payment of all amounts due to the employee from the employer is made on the day of the employee’s dismissal.
According to Art. 84.1 of the Labor Code of the Russian Federation, the day of termination of the employment contract in all cases is the last day of work of the employee, with the exception of cases when the employee did not actually work, but in accordance with this Code or other federal law, he retained his place of work (position).
Based on Art. 236 of the Labor Code of the Russian Federation, if the employer violates the established deadline for payment of wages, vacation pay, dismissal payments and other payments due to the employee, the employer is obliged to pay them with interest (monetary compensation) in the amount of not less than one three hundredth of the refinancing rate in force at that time Central Bank of the Russian Federation from unpaid amounts on time for each day of delay starting from the next day after the established payment deadline until the day of actual settlement inclusive. The amount of monetary compensation paid to an employee may be increased by a collective agreement or employment contract. The obligation to pay the specified monetary compensation arises regardless of the employer’s fault.
Thus, on October 31, 2011, the defendant was supposed to transfer funds in the amount of 10,382.39 rubles, but the amount of money in the amount of 6,459.60 was transferred only on November 09, 2011 (and an additional amount of 3,922.79 rubles was not paid) , 12/01/2011 were supposed to transfer 10,941.92, 12/01/2011 – 7,000 rubles were transferred, 12/08/2011 – 382.40 rubles. did not pay an additional 3,559.52 rubles), on 01/10/2012 they should have transferred 7,957.76 rubles. On January 10, 2012, 14,105.44 rubles were transferred. (overpaid RUB 6,147.68).
The amount of compensation was 142.19 rubles. ((10,382.39Х8.25Х1/300Х9)+(3,922.7939Х8.25Х1/300Х71)+(3,922.7939Х8.25Х1/300Х7)+(3,559.52Х8.25Х1/300Х33)). However, taking into account what was actually paid to Chapskaya L.M. amount of compensation, the court comes to the conclusion that the demands of Chapskaya L.M. In terms of interest for delay in payment, calculations are not subject to satisfaction.
When resolving the plaintiff’s claims for compensation for moral damage, the court is guided by the provisions of Art. 237 of the Labor Code of the Russian Federation, according to which moral damage caused to an employee by unlawful actions or inaction of the employer is compensated to the employee in cash in amounts determined by agreement of the parties to the employment contract. In the event of a dispute, the fact of causing moral damage to the employee and the amount of compensation for it are determined by the court, regardless of the property damage subject to compensation.
According to the explanations contained in paragraph 63 of the Resolution of the Plenum Supreme Court Russian Federation dated March 17, 2004 N 2 “On the application by courts of the Russian Federation Labor Code Russian Federation" provides that the court has the right to satisfy the employee’s claim for compensation for moral damage caused to him by any unlawful actions or inaction of the employer, including violation of his property rights.
Since the Court established that violations on the part of the defendant, expressed in untimely payment of compensation to the employee, took place, then the requirements of Chapskaya L.M. the claim for compensation for moral damage is also subject to satisfaction, and, guided by the requirements of reasonableness and fairness, the court considers it possible to reduce the amount of compensation and recover from the defendant in favor of the plaintiff compensation for moral damage in the amount of 1,000 rubles.
Considering the counterclaim of OJSC “M” to Lyubov Mikhailovna Chapskaya for the recovery of overpaid benefits, the court comes to the following conclusion.
According to paragraph 1 of Article 1102 Civil Code a person who, without the grounds established by law, other legal acts or transaction, acquired or saved property (acquirer) at the expense of another person (victim), is obliged to return the unjustly acquired or saved property (unjust enrichment). The exception is the cases listed in Article 1109 of the Civil Code of the Russian Federation. For example, sums of money provided to a citizen as a means of subsistence are not subject to return as unjust enrichment, but only in the absence of dishonesty on his part and a calculation error. This may be wages and equivalent payments. Consequently, the above amounts paid in excess to an employee in the presence of dishonesty on his part or an accounting error are considered as unjust enrichment and must be returned to the organization - the source of payment.
In addition, Part 4 of Article 137 of the Labor Code states that wages overpaid to an employee (including in the event of incorrect application of laws or other regulations) cannot be recovered from him, except in cases of a calculation error or an admission of guilt by the employee in failure to comply with labor standards or downtime by the body for consideration of individual labor disputes, excessive payment of wages to an employee in connection with unlawful actions established by the court.
Thus, amounts overpaid by the employer due to improper application of labor legislation or other regulatory legal acts containing norms are not subject to refund. labor law. It is the employer's responsibility to prove that a counting error occurred.
The legislation does not contain a definition of counting error. According to the court, an accounting error should be considered an error associated with arithmetic operations when calculating wages, a mechanical error when entering data into an accounting program, as well as an error caused by a malfunction accounting program. Technical errors, that is, typos and typos in financial documents, as well as incorrect application of legislation or regulations of the organization are not counting errors.
According to Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided by federal law.
Based on the above, as well as on the basis of the calculation provided by the employer, pay slips and a certificate of calculation of average earnings, the court comes to the conclusion that the plaintiff in the counterclaim did not provide evidence that the basis for the overpaid funds was a calculation error.
In accordance with Art. 100 of the Code of Civil Procedure of the Russian Federation, to the party in whose favor the court decision was made, at its written request, the court awards, on the other hand, the costs of paying for the services of a representative within reasonable limits.
In this connection, based on the principle of reasonableness, the court considers it necessary to recover from OJSC “M” in favor of Chapskaya L.M. expenses for a representative in the amount of RUB 2,000.
According to Part 1 of Article 103 of the Code of Civil Procedure of the Russian Federation, the state fee, from which the plaintiff is exempted, is recovered from the defendant, who is not exempt from paying court costs, in proportion to the claims satisfied.
In accordance with this, a state duty in the amount of 200 rubles is subject to collection from the defendant for the benefit of the state.”
3. Decision of the Tyukhtetsky District Court of the Krasnoyarsk Territory dated July 23, 2010 No. 2-52/2010
"Kopendakov A.P. filed a claim in court against the Achinsk branch No. 180 of the Joint Stock Commercial Savings Bank of the Russian Federation for specified requirements for the recovery of underpaid severance pay upon dismissal and average earnings for the 2nd and 3rd months upon employment in the amount of 7007 rubles 64 kopecks and moral compensation damages in the amount of 10,000 rubles, citing the fact that he worked as a watchman for the defendant, 12/18/2009. dismissed under Article 81, Clause 2 of the Labor Code of the Russian Federation due to staff reduction. He was accrued and paid the average salary for 3 months, that is, in the amount of 22,619 rubles 52 kopecks, and according to the certificate provided to him by the defendant, his average earnings amounted to 9,875 rubles 72 kopecks, that is, in his opinion, he should have been paid for three months in the amount of 29,627 rubles 16 kopecks, which is 7,007 rubles 64 kopecks more than he was given. He believes that the actions of the defendant, expressed in the underpayment of average monthly earnings, are illegal, as a result of which he suffered moral damage, and asks the court to recover from the Achinsk branch of Sberbank No. 180 the underpaid severance pay upon dismissal and the average monthly earnings upon employment in the amount of 7007 rubles 64 kopecks and compensation moral damage in the amount of 10,000 rubles.
During the court hearing A.P. Kopendakov supported his claims and gave testimony similar to the establishing part of the decision, adding that when receiving severance pay, the saved monthly salary is not in full size He did not go to court within the three-month period because he had been collecting documents for a long time, waiting for the defendant to send them to him, and he had no other reasons for missing this deadline.
Representative of the defendant joint-stock commercial Savings Bank of the Russian Federation (open joint stock company) represented by Achinsk branch No. 180 N.O.N. – the leading legal adviser of the legal sector did not recognize the claim in court, considering that the calculation of the plaintiff’s severance pay for the month and the saved average earnings for two months for the period of employment was made correctly and paid in full, and showed that on December 18, 2009. Kopendakov A.P. on the basis of order No. 000-k, he was dismissed from the position of guard of the security and information protection department of the Achinsk branch No. 180 of Sberbank of Russia OJSC under clause 2 of Article 81 of the Labor Code of the Russian Federation - due to staff reduction. In accordance with labor legislation m he was paid severance pay for the first month and the saved average monthly earnings for the second and third months of employment.
The procedure for calculating the average salary is determined by Article 139 of the Labor Code of the Russian Federation and the Regulations on the specifics of the procedure for calculating the average salary, approved by the Decree of the Government of the Russian Federation of December 24, 2007. No. 922 (as amended on November 11, 2009 No. 916).
According to Article 139 of the Labor Code of the Russian Federation, for all cases of determining the size of the average salary (average earnings), a uniform procedure for its calculation is established.
To calculate wages, all types of payments provided for by the remuneration system and applied by the relevant employer are taken into account, regardless of the sources of these payments.
In any mode of operation, the average salary of an employee is calculated based on the salary actually accrued to him and the time he actually worked for the 12 calendar months preceding the period during which the employee retains his average salary. In this case, a calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive).
According to paragraph 13 of the above Regulations, when determining the average earnings of an employee for whom a summarized recording of working time has been established, except for cases of determining the average earnings for paying for vacations and paying compensation for unused vacations, the average hourly earnings are used. Kopendakov has a summarized accounting of working time.
Average hourly earnings are calculated by dividing the amount of wages actually accrued for hours worked in billing period, including bonuses and remunerations taken into account in accordance with paragraph 15 of these Regulations, for the number of hours actually worked during this period.
Average earnings are determined by multiplying average hourly earnings by the number of working hours according to the production calendar in the period subject to payment.
The amount of average earnings for payment of severance pay upon dismissal and average earnings upon employment by Kopendakov A.P. calculated as follows:
The sums of wages for the last 12 months worked (from December 2008 to November 2009 inclusive) were added up, taking into account bonuses and the 13th salary, the resulting amount was 114,805 rubles 92 kopecks - the base for calculating average hourly earnings.
During the same period, the hours actually worked were added up, including the hours worked in excess of the norm, it turned out that 2274 hours were actually worked by A.P. Kopendakov. for the specified period.
After this, the base for calculating average hourly earnings was divided by the hours actually worked and the average hourly earnings was obtained:
114805.92: 2274 = 50.49 rubles – average hourly earnings for 12 months
Based on the number of working hours according to the production calendar for 2009 and 2010, A.P. Kopendakov need to pay:
from 12/19/2009 to 01/18/2010 15 days (120 hours)
from 01/19/2010 to 02/18/2010 23 days (184 hours)
from 02/19/2010 to 03/18/2010 18 days (144 hours)
The severance pay was calculated by multiplying the number of hours by the average hourly earnings:
from 12/19/2009 to 01/18/2010 50.49 x 120 = 6058.80 rubles
from 01/19/2010 to 02/18/2010 50.49 x 184 = 9290.16 rubles
from 02/19/2010 to 03/18/2010 50.49 x 144 = 7270.56 rubles.
The response provided by the defendant erroneously states that payment must be made according to the schedule instead of the correct one according to the calendar, and the saved average earnings for two months are indicated as severance pay. There was no schedule for returning to work after dismissal. *
He believes that the plaintiff was dismissed in compliance with the norms of the current legislation, with the payment of funds provided for by law in full, personal non-property rights or other intangible benefits encroaching on the citizen’s property were not violated, and therefore no moral damage was caused, therefore the requirements for compensation for moral damage are insolvent.
In addition, the plaintiff missed the three-month limitation period for going to court for two months of payment from December 19, 2009 to February 18, 2010 with the specified requirements, provided for in Article 392 of the Labor Code of the Russian Federation, since the plaintiff knew about the amount of the benefit paid, starting from December 31, 2009 ., and had the opportunity to go to court within the time limits established by law.
Specialist - accountant of the settlement group of the education department of the administration of the Tyukhtetsky district R.Z.G., who has 29 years of work experience, at the court hearing analyzed the calculation of the severance pay and average earnings for employment announced in court by the defendant and showed that the calculation was made on the basis of labor legislation, as well as the Regulations on the specifics of the procedure for calculating average wages (approved by Decree of the Government of the Russian Federation of November 11, 2009 N 916), according to which, when determining the average earnings of an employee for whom a summarized accounting of working time is established, except in cases of determining the average earnings for paying vacations and paying compensation for unused vacations, average hourly earnings are used. Average hourly earnings are calculated by dividing the amount of wages actually accrued for hours worked in the billing period, including bonuses and remunerations taken into account in accordance with paragraph 15 of these Regulations, by the number of hours actually worked during this period. Average earnings are determined by multiplying average hourly earnings by the number of working hours according to the calendar in the period subject to payment.
Having heard the parties, a specialist, and examined the case materials, the court considers that the plaintiff’s claims cannot be satisfied, based on the following:
Based on Part 1 of Article 392 of the Labor Code of the Russian Federation, an employee has the right to go to court to resolve an individual labor dispute within three months from the day he learned or should have learned about a violation of his rights. Kopendakov A.P. knew about the alleged violation of his right from December 31, 2009, from the moment his average earnings were first credited to his personal account. They also missed the deadline for going to court from the moment the benefit was transferred to the personal account for the second time, that is, from 03/09/2010. Validity of the reasons for missing the deadline for applying to the court Kopendakov A.P. didn't name it. That is, as the representative of the defendant stated, he violated the statute of limitations for resolving an individual labor dispute and did not file a petition to restore this period.
The plaintiff’s stated arguments that he was expecting the documents requested from the defendant cannot be accepted by the court as a valid reason for missing a deadline, since they are not such.
The calculation of average earnings for the third month from 02/19/2010 to 03/18/2010, as well as for the previous months, was calculated by the defendant on the basis of current legislation.
In accordance with Article 139 of the Labor Code of the Russian Federation, for all cases of determining the amount of average wages (average earnings) provided for by the Labor Code of the Russian Federation, a uniform procedure for its calculation is established. To calculate the average salary, all types of payments provided for by the remuneration system and applied by the relevant employer are taken into account, regardless of the sources of these payments. In any mode of operation, the average salary of an employee is calculated based on the salary actually accrued to him and the time he actually worked for the 12 calendar months preceding the period during which the employee retains his average salary. In this case, a calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive).
Based on Article 178 of the Labor Code of the Russian Federation, upon termination of an employment contract due to a reduction in the number or staff of the organization’s employees (clause 2 of part one of Article 81 of the Code), the dismissed employee is paid severance pay in the amount of average monthly earnings, and he is also retained the average monthly earnings for the period employment, but not more than two months from the date of dismissal (as amended. Federal Law dated June 30, 2006 N 90-FZ).
In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it.
Based on the Regulations on the specifics of the procedure for calculating the average salary (approved by Decree of the Government of the Russian Federation of November 11, 2009 N 916), the calculation of the average salary of an employee, regardless of his work mode, is based on the salary actually accrued to him and the time actually worked by him for 12 calendar months preceding the period during which the employee retains his average salary. In this case, a calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive).
Based on clause 9 of the above Regulations, when determining average earnings, the average daily earnings are used in the following cases:
to pay for vacations and pay compensation for unused vacations;
for other cases provided for by the Labor Code of the Russian Federation, except for the case of determining the average earnings of workers for whom summarized recording of working time is established.
Based on clause 13 of the said Regulations, when determining the average earnings of an employee for whom a summarized recording of working time is established, except in cases of determining the average earnings for vacation pay and payment of compensation for unused vacations, the average hourly earnings are used.
Average hourly earnings are calculated by dividing the amount of wages actually accrued for hours worked in the billing period, including bonuses and remunerations taken into account in accordance with paragraph 15 of these Regulations, by the number of hours actually worked during this period.
Average earnings are determined by multiplying average hourly earnings by the number of working hours according to the calendar in the period subject to payment.
The calculation of severance pay and the saved average monthly earnings for the period of employment for the second and third months was made by the defendant in accordance with the above standards, confirmed as correct by a specialist questioned in court, an accountant of the education department with 29 years of experience, Z. G. Remizova, verified by the court and found correct , and therefore his rights were not violated and therefore no moral damage was caused, hence in satisfaction of compensation for moral damage to A.P. Kopendakov. must be refused.
Arguments of the plaintiff Kopendakov A.P. that to calculate severance pay it is necessary to take the average earnings determined in the certificate for determining the amount of unemployment benefits in the amount of 9875.72 rubles are incorrect, since its calculation does not correspond to the procedure for calculating severance pay and average earnings during employment, provided for by the Regulations on features of the procedure for calculating the average salary (approved by Decree of the Government of the Russian Federation of November 11, 2009 N 916), as well as the conclusions of specialist R.Z.G., who analyzed the calculation made by the defendant and recognized it as correct in accordance with the requirements of the law.”
Best regards, Natalya Kolosova,
Your personal expert.
Measures social protection working population are enshrined at the legislative level. That is why if a person is laid off at work, then he is assigned a number of compensations and payments that the employer is obliged to pay on time.
Payments upon layoffs are made from the organization's funds.
General provisions
An employer who reduces a position in production is obliged notify the employee holding such a position 2 months before dismissal.
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Ban on dismissal
Labor legislation provides for some prohibitions on layoffs. Thus, a person who is on sick leave or on legal leave cannot be laid off.
It is noteworthy that if the employer decides to eliminate a certain position, the employee who occupies it will still be laid off. For example, when sick leave or vacation ends. Temporary disability only postpones the period of dismissal.
According to labor legislation, pregnant women or women with dependent children less than three years old cannot be laid off. Employees are either transferred to another position or retain their position until the “immunity” period ends.
Compensation for layoffs
Payments upon redundancy are made on the last day of the employment contract. The employer is obliged to give the employee a full payment, work book, certificate in form 2-NDFL.
Amount of compensation
Labor legislation provides for the payment of severance pay and compensation for layoffs from the employer's funds. Thus, severance pay is calculated on a general basis, regardless of the reason for dismissal.
Amount of severance pay
Severance pay in 2019 is calculated using the general formula:
VP=RD*NW,
where VP is severance pay,
RD - working days in the month following dismissal,
SZ - average daily earnings.
Average daily earnings are calculated using the formula:
SZ=GD/730,
where GD is the total annual income for two years.
For example, an employee received a total of 900,000 rubles from the employer over two years. Average daily earnings will be: 900,000/730=1,232 rubles.
The month following dismissal must have 25 working days.
Then the employee will receive severance pay in the amount of: 1232*25=30800 rubles.
The employer is obliged to pay this amount in a lump sum on the last working day. The redundancy allowance is not subject to taxation if its amount does not exceed three times the average monthly earnings.
If an employee does not take paid leave, the organization is obliged to compensate it in cash. This amount is added to the amount of severance pay, but is subject to income tax.
Amount of compensation
The compensation that an organization pays to a laid-off employee implies monthly payments, the amount of which is equal to the average monthly earnings.
Such earnings are calculated on the basis of average daily income and the number of days actually worked.
For example, if the average daily salary is 1,232 rubles, and in fact a person worked 25 days in the last working month, then the average monthly salary will be 30,800 rubles. This is exactly the compensation a citizen will receive after being laid off.
If the employment contract provides for the payment of bonuses for a certain period of work or the “13th salary,” then when calculating severance pay, these amounts are also taken into account and paid to the employee.
The amounts that the employee independently calculates for compensation may differ from those calculated by the accounting department. First of all, because for accurate calculation The number of days actually worked is taken, excluding all days when the person was sick or on vacation.
Compensation payment periods
Labor legislation provides for a fairly clear deadline for payments. Thus, the employer is obliged to transfer the average monthly salary to the account of the laid-off employee. within two calendar months after dismissal.
If a person gets a new position in another organization, then the right to compensation payments is not retained.
If within two months a citizen has not found a new job, then the period of payments from the previous employer for him can be extended.
How to extend compensation
After being laid off, a citizen is advised to contact the employment center at his place of residence to register.
If this is done within two weeks after dismissal, then there is a chance of extending compensation.
The Employment Center may make a decision on the need to extend the payment of benefits from the previous employer for another month if it is unable to employ the citizen in a new place.
Additional payments
Labor legislation provides for a different reduction procedure than the generally established one.
Thus, an employer may offer a person to terminate labor Relations ahead of schedule (before the deadline for notification of layoffs). If a citizen gives his written consent, he receives compensation in the amount of average earnings.
Article 180 of the Labor Code of the Russian Federation:
The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the period specified in the notice of layoff, paying him additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.
In this case, the person receives severance pay and compensation for early termination of employment.
In this case, compensation for reduction is not retained for him, since the basis for dismissal is either an agreement of the parties or the employee’s own desire.
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Due to the unfavorable economic situation in the country, companies are trying in every way to stay afloat and save their financial expenses. A significant budget item in enterprises is employee salaries, so most often management decides to reduce the number of personnel.
Each person fired is entitled to benefits. Out of ignorance, many decide to quit themselves and not complete the allotted time. But this is not always correct. To know your rights and how much money will be transferred to you, we recommend that you familiarize yourself with what severance pay for layoffs in 2019 is due to employees in Russia.
Categories of employees who cannot be laid off
There is a widespread belief among company employees that if an employer decides to reduce staff, it can fire any employee at its discretion, but this is far from the case. First of all, they are guided by the labor legislation of the Russian Federation. According to this legal document, when staffing is reduced, the following remain at their workplace:
- employees on vacation. Especially women on maternity leave. According to Art. 256 of the Labor Code of the Russian Federation, “during the period of parental leave, the employee retains his place of work (position)”;
- pregnant women. This category of workers can only be laid off if the entire enterprise is liquidated. If a position is reduced, then the employer is obliged to offer an equivalent job both in terms of working conditions and wages;
- single mothers, if they support a child under 14 years of age or a disabled child under 18 years of age;
- employees who received work-related injuries at this company;
- people recognized as the sole breadwinners in their family or if they support 2 or more dependents. That is, if no one else works for the family or provides it in any other way, then such an employee cannot be laid off.
In addition to the categories listed above, according to current legislation, some categories of beneficiaries, for example, WWII veterans, cannot be reduced.
Do not rush to write a statement at will, because in this way you simplify the layoff procedure for your manager. Perhaps he is not acting entirely within the law.
If you can still be laid off, then know that the employer must base his selection either on the level of education of specific candidates or on labor productivity. If the procedure is violated and there is evidence of this, you can go to court.
In any case, the worker is entitled to compensation. Redundancy benefits in 2019 are mandatory. If you receive a notice that you are being fired, do not write a statement, because in this situation you will not receive this amount.
When is severance pay paid in case of staff reduction in 2019?
To reduce the number of positions there must be a reason, for example, closure of a branch, liquidation production line, difficult financial situation of the company, etc. After management makes a decision to reduce staff, a corresponding order is issued, which must be properly executed and registered.
The document itself contains a list of positions, all employees subject to reduction, as well as the dates of dismissal. After this, a commission is appointed that will monitor the correctness of the procedure and the timing.
All employees without exception who are at risk of dismissal must familiarize themselves with the order. They are also given notifications with all the information about the reasons and timing of the reduction. Check the date of dismissal; the employer undertakes to notify his employee of the layoff no later than two months in advance. It is believed that this time should be enough to put everything in order and find a new job.
All documents also provide a list of current vacancies on the labor market if it is impossible to transfer the employee to another vacant position within the company in which the dismissed employees previously worked.
When is severance pay paid in case of staff reduction in 2019? This happens, as in previous years, on the last day of work at the employer’s company. You can immediately pick up your work book. If the worker believes that he was not paid the full amount or the dismissal procedure was violated, then no later than 3 months he can challenge the decision in the courts.
Calculation of severance pay for layoffs in 2019 (with example)
Severance pay for layoffs in 2019 is not a certain amount. It is calculated based on the amount of income of a person working in a company, for Last year, but not more than the average monthly wage. When a laid-off employee objective reasons couldn't find it workplace and register there within 8 weeks, he still has the opportunity to receive an additional average salary per month. This term lasts up to 12 weeks if the person registered with the employment center immediately after payment and its specialists were unable to help him find employment.
This is stated in Art. 178 of the Labor Code of the Russian Federation: “When an employment contract is terminated due to the liquidation of an organization (clause 1 of part one of Article 81 of this Code) or a reduction in the number or staff of the organization’s employees (clause 2 of part one of Article 81 of this Code), the dismissed employee is paid severance pay in the amount of the average monthly salary earnings, and also retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).”
If, when you joined a company, you entered into a contract, and it included a clause regarding the amount of money upon dismissal at the initiative of the employer, then it is allowed to pay compensation to the employee in an increased amount, but not more than in an amount multiplied by 6 times.
Calculation of severance pay for staff reductions in 2019 is based on a person’s earnings for the 12 working months preceding the date of dismissal and hours worked for the above period.
When calculating, all types of payments that were provided for in the remuneration system of a particular company are taken into account, except for:
- accrued sick leave or vacation pay of the employee;
- cash compensation for travel expenses or accommodation;
- payment for downtime at work, when in fact a person received money, but did not work.
The calculation of severance pay for layoffs in 2019 is the same in the case of dissolution of the company or only staff reduction, and is carried out according to a single methodology.
Example. When the branch was closed, the office manager was fired. Wage for a month he had 50 thousand rubles. In addition, he deserved this year bonus in the amount of 15 thousand rubles. Then, according to calculations, he is entitled to the following amount: (50x12+15)/12=51 thousand 250 rubles.
If a person is offered another position, but he refuses, then the payment will be much less, because such employees are not entitled to compensation for 30 days, but only for 14.
Is personal income tax withheld from severance pay during layoffs in 2019?
When an employee completes his last working day, the accountant calculates compensation for vacation if the person did not rest, salary for days worked in the current month, and benefits. From the first two payments, income tax is withheld at a rate of 13%.
Personal income tax on severance pay in case of reduction in 2019 is not withheld at all, since according to clause 3 of Art. 127 of the Tax Code of the Russian Federation: “The following types of income of individuals are not subject to taxation (exempt from taxation): amounts of payments in the form of severance pay, average monthly earnings for the period of employment, compensation to the manager, deputy managers and chief accountant of the organization in the part exceeding in general three times the amount average monthly earnings or six times the average monthly earnings for workers dismissed from organizations located in the Far North and equivalent areas.”
Documents for receiving unemployment benefits in 2019 due to layoffs
To receive unemployment benefits in 2019 due to layoffs, you need to collect a package of documents, including: passport, employment, application and certificate of income from the place of work. Then they must be submitted to regional center employment.
If you have worked at this enterprise for at least 26 weeks, then you are entitled to assistance in the amount of 75% of your previous salary for the first 12 weeks. Then this amount will decrease and in the next 4 months it will be 60%, and after this period, if you do not get a job, only 45%. That is, you will be entitled to the maximum percentage of payments, since the reduction is a dismissal at the initiative of the employer.