Payments upon dismissal of the deputy director of a unitary enterprise. How to fire a CEO “for no reason. How compensation is paid to a director upon dismissal, if there is no clause on its payment in the contract

), by agreement of the parties to the employment contract (Article 78 of the Labor Code of the Russian Federation), at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation), etc.

In addition to general grounds, it is allowed to dismiss a director on special additional grounds (Article 278 of the Labor Code of the Russian Federation):

removal from office of the head of the debtor company in accordance with bankruptcy legislation (clause 1 of article 278 of the Labor Code of the Russian Federation);
an authorized person made a decision to terminate the employment contract with the director (clause 2 of article 278 of the Labor Code of the Russian Federation);
other grounds provided for by the employment contract (clause 3 of article 278 of the Labor Code of the Russian Federation). At the same time, the Labor Code does not limit the list of additional grounds for the dismissal of a company director.

The main thing is that they are indicated in the employment contract (an additional agreement to it) and comply with the current legislation.

Who can terminate an employment contract with a director

The decision to terminate the powers of the head of the company ( general director) can accept (clause 2 of article 278 of the Labor Code of the Russian Federation):

authorized body of the company, for example, the board of directors (subparagraph 2 of paragraph 2.1 of article 32, subparagraph 4 of paragraph 2 of article 33, article 40 Federal law dated 08.02.98 No. 14-FZ, sub. 8 p. 1 art. 48, sub. 9 p. 1 of Art. 65 and clause 3 of Art. 69
the only owner of the company's property (clause 2 of article 7 of the Federal Law of 08.02.98 No. 14-FZ, clause 2 of article 3 and clause 3 of article 47 of the Federal Law of 26.12.95 No. 208-FZ);
person (body) authorized by the owner.

The decision does not need to indicate specific circumstances confirming the need to terminate the employment contract.

Compensation to the director upon dismissal due to early dismissal of the director

If the decision is made to stop labor Relations with the director in the absence of guilty actions (inaction) of the head, he is paid compensation (Article 279 of the Labor Code of the Russian Federation).

The amount of compensation to a director upon dismissal is established by an employment contract. But the amount of compensation cannot be lower than three times the average monthly wage of an employee. The parties to the employment contract should establish its size even when concluding the employment contract. If this did not happen, its size can be determined and fixed later in a supplementary agreement.

Sometimes a termination compensation clause is not included in labor contract with the director neither at the time of hiring, nor later. According to some employers, in this case, upon dismissal of the director on the basis of paragraph 2 of Article 278 Labor Code, the company does not have to pay compensation: there is no entry in the contract - there is no obligation to pay.

However, the judges of the Supreme Court of the Russian Federation do not agree with this. They believe that the absence in the employment contract with the director of the condition on the payment of compensation and its amount does not relieve the owner of the property from the obligation to pay it (Definition of the RF Armed Forces of 25.01.2008 No. 5-B07-170).

The obligation to pay compensation arises for the owner also in cases where the contract was concluded before the entry into force of the Labor Code, and the necessary changes were not made to it. Dismissal of a director without payment of compensation, if he did not commit any culpable actions that give rise to his dismissal, is a violation of the order of dismissal. The court may decide to reinstate the dismissed person at work (clause 4.3 of the resolution of the Constitutional Court of the Russian Federation of 15.03.2005 No. 3-P).

The amount of compensation not specified in the employment contract

It turns out that in the absence of a condition on compensation to the director upon dismissal in the employment contract, it still needs to be paid. How much?

The parties to the employment contract may conclude additional agreement to the employment contract immediately before the dismissal. In it, they will fix the amount and procedure for payment of compensation.

In the event of a dispute between the owners of the company and the dismissed director, the decision on the amount of compensation and the procedure for its payment may be made by the court, taking into account the factual circumstances.

This payment is compensation for the adverse consequences resulting from the loss of a job. Its size can be determined taking into account the time remaining until the expiration of the employment contract, as well as the amounts that the manager could receive by continuing to work in his previous position, and the additional costs that he may have to incur as a result of early termination of the contract. (Clause 4.2 of the Resolution of the Constitutional Court of the Russian Federation of March 15, 2005 No. 3-P).

Example
Labor agreement with the General Director of Olimpstroybak LLC R.L. Slytsov was imprisoned for a period until January 31, 2015. However, the owner of the company decided to fire the employee from December 20, 2014 for no apparent reason. The amount of compensation in the employment contract at the time of dismissal was not indicated, but the owner is ready to pay it, taking into account the time remaining until the expiration of the employment contract.

The employee's salary is 100,000 rubles. Also, the company pays an annual bonus in the amount of a salary if the employee did not have disciplinary action and absences from working hours, with the exception of 28 calendar days annual paid leave. According to the regulation on bonuses, if an employee had days off work for other reasons, including in connection with dismissal before the end of the year, the amount of the bonus is calculated in proportion to the number of working days actually worked during the year. At the same time, 28 calendar days of vacation are equal to 20 unworked working days.

R.L. Cunning during 2014 was absent from work for 28 calendar days in the period annual leave and did not work 7 working days in December due to dismissal. The average monthly earnings at the time of dismissal is 92,424.24 rubles.

The amount not received in December 2014 will be 31,818.18 rubles. (100,000 rubles: 22 working days × 7 working days). In January he will not receive a full salary in the amount of 100,000 rubles. The amount of the annual bonus will be calculated in proportion to the hours actually worked and will amount to 89,068.83 rubles. ... If the employee had not been fired, his annual bonus would be equal to the salary. As a result, he will receive less than 10,931.17 rubles. (100,000 rubles - 89,068.83 rubles). The total amount of lost earnings will be 142,749.35 rubles. (31,818.18 rubles + 100,000 rubles + 10,931.17 rubles).

I. Grigoriev,
labor law expert

This sample of an employment contract with the general director of an LLC is not legally defined as mandatory. Chapters, except for the preamble, the subject of the treaty and final clauses may go in a different order. They may have different names, the rights and obligations of the parties may be classified under different chapters.

Incentive payments are taken into account when calculating compensation, but maternity, maternity and childbirth care are not taken into account. The calculation of compensation is performed based on the average daily earnings, on the basis of which the average monthly earnings are calculated by finding the product of the average daily salary and the number of working days for Last year and multiplying it by 3.

The procedure for dismissing a director by decision of the founder

The dismissal of a director by decision of the founder means termination of an employment contract with a sole proprietor executive body LLC or JSC (director, general director, president, etc.) on the basis of the decision of the competent management body of the LLC or JSC (the only participant of the LLC, the general meeting of the participants of the LLC, the general meeting of shareholders of the JSC, and sometimes the board of directors of the LLC or JSC).

If all the participants (founders) of the LLC agree, you can hold a meeting ahead of schedule, not observing the procedure for convening established in the society (with the condition that all members of the society will participate in it). But the confirmation of the decision must also be carried out by a notary or in another order, enshrined in the charter.

Compensation for the dismissal of a director by decision of the founder

The legislator does not specify what size should be compensation upon dismissal of the CEO(such conditions are part of the employment agreement), however, Art. 279 set the minimum compensation limit - three times the average monthly salary. If the compensation is less than the amount, the employee has the right to recover the difference. So, the Chelyabinsk Regional Court, satisfying the requirement to recalculate compensation in favor of the plaintiff, indicated that the payment in case of termination of the contract in a smaller amount would not meet the requirements of Art. 279 of the Labor Code of the Russian Federation (determination of 08.25.2020 in case No. 11-12345 / 2020).

Thus, the procedure for terminating the contract must be followed, in general view enshrined in Art. 84.1 of the Labor Code of the Russian Federation. Violation of these rules will allow the employee to recover in office. In addition, it is impossible to terminate the employment relationship during the vacation or the period of the employee's disability (clause 50 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 No. 2).

The procedure for dismissing the general director according to the decision of the founder

If, as a result of his actions, the company has suffered property or financial damage.
For disclosing information about a company that is a trade secret.
When transferring to another company on a part-time basis.
If he has grossly violated his labor duties.
In case of bankruptcy of the company.
If the owners of the enterprise change.

A lot of documentation is drawn up for the CEO to perform special powers. For example, powers of attorney for the implementation of certain functions, EDS - for conducting banking operations, etc. When dismissed from office, he must transfer all entrusted values to the new management or other competent person.

Compensation to the director upon dismissal in 2020

Despite the importance of an employment contract, first of all, it is necessary to take care of the implementation of the provisions of federal regulations, since they always have a priority over any local acts of companies. Therefore, even if the employment contract does not contain a clause on the payment of compensation to the dismissed director, it must be paid, since he is deprived of his job not of his own free will.

On the last day of work, the director must familiarize himself with the order on his dismissal, after which the documents are transferred to the accountant and the employee of the personnel department. The manager on the same day will receive a work book with a record of the reasons for dismissal and the rest of the money he earned. He will be paid his salary for the last month, compensation for the vacation he was entitled to, did not have time to use it, severance pay in case of dismissal not by on their own and not for disciplinary action or violation of the law.

How to fire an LLC director

9.Dismissal of a director upon liquidation of an organization... The director must be notified in writing not later than two months in advance of the liquidation of the company. The powers of the director are terminated after the appointment of the liquidator, while the duties of the liquidator can be performed by himself former director, but already within the framework of a civil contract.

The owners of the organization should bear in mind that a leader dismissed under Article 81 of the Labor Code of the Russian Federation has the right to demand in court that such a dismissal be declared illegal. In this case, the defendant must reasonably prove that the harm to the health of employees or damage to the property of the organization was caused precisely by unjustified actions or inaction of the director.

Compensation to the director upon dismissal in connection with the adoption of the relevant decision by the authorized body

1. Upon dismissal under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation to the head, according to Art. 279 of the Labor Code of the Russian Federation, compensation must be paid in the amount determined by the employment contract, but not less than three times the average monthly earnings. Since in this case, the amount of compensation for this situation is not defined in the employment contract with the general director, upon dismissal, the general director must be paid an amount equal to three times the average monthly salary.

Taking into account the requirements of clause 5.5 of the Instruction, the wording of the entry in the work book (and, therefore, in the order of dismissal) should be as follows: “Dismissed due to the adoption by the authorized body legal entity decisions on termination of the employment contract, paragraph 2 of Article 278 of the Labor Code of the Russian Federation ”.

Dismissal of the CEO by decision of the founder

Upon dismissal of a director on the grounds specified in clause 1, it is not expected that any compensation will be paid in his favor. If the director is dismissed according to clause 2 - compensation is due, and its amount should not be less than 3 monthly salaries (if a larger payment is not provided for by the employment contract).

Form R14001 is generally submitted to the tax service by the founders themselves (since the new director at that time - before the changes in the Unified State Register of Legal Entities - from the point of view of administrative legislation, does not have the authority to submit any documents to the Federal Tax Service). But in some cases, the Federal Tax Service agrees to accept this document and from the former director (since he, despite the termination of work in the company under the Labor Code of the Russian Federation, from the point of view of the Federal Tax Service, still remains the head of the organization).

Change of ownership of the organization. Preparation of documentation for the transfer of a company from one owner to another. Within 3 months after this, the current director should be notified of his removal from office.

The nuances of dismissing a director by decision of the founder: the procedure for the procedure, as well as a sample notification

causing damage to the organization, through the illegality of the actions performed. In this case, a decision is made to dismiss the post without compensation. Documentation (orders and financial statements) is prepared to confirm the damage caused to the company, in accordance with Art. 81 h. 1 p. 9.

In the absence of evidence, it is unlikely that litigation will be avoided, and the dismissed employee can obtain reinstatement to the position of director through the courts. At the end of the proceedings, an act is drawn up containing all information about the proceedings.

Dismissal for drinking alcohol in work time... An act is drawn up, with the participation of at least 2 witnesses, and a medical examination is carried out. In case of refusal to conduct an inspection, a corresponding note is put in the act.

Disclosure of trade secrets. It is required to record this fact and demand explanations in writing. If the culprit refuses, you should invite 2 eyewitnesses and draw up an act in their presence.

Termination of an employment contract without giving a reason. The current director must be notified of this 30 days in advance.

The end of the terms of the contract. The founder or the board of founders must decide whether to replace the manager or extend his employment contract.

Liquidation of company. At least 2 months in advance, the manager must be provided with a notice of the termination of the organization. The powers of the director are terminated immediately after the election of the liquidator.

Bankruptcy. Formation of the liquidation commission, filing a petition with the arbitration court to remove the current director. With a positive decision of the court, the current director is removed from the management of the company, his powers are transferred to a temporary manager (Article 69, clause 1 of the Federal Law of the Russian Federation).

Article 139 of the Labor Code of the Russian Federation established uniform order calculating the amount of average earnings for all cases when it must be determined in accordance with the norms of the Labor Code of the Russian Federation (payment of vacation pay, business trip and other cases). Calculation of the average monthly earnings when paying compensation to the manager on the basis of Art. 279 of the Labor Code of the Russian Federation is no exception and is also made according to the rules established by Art. 139 of the Labor Code of the Russian Federation and the Regulations on the specifics of the procedure for calculating the average wages approved by Decree of the Government of the Russian Federation of 24.12.2007 No. 922.

It should be noted that this guarantee is valid only in the absence of culpable actions (inaction) on the part of the manager. In the resolution of the Constitutional Court of the Russian Federation of 15.03.2005 No. 3-P, it is noted that the dismissal of the head under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation for committing guilty actions (inaction) cannot be carried out without specifying specific facts indicating the manager's misconduct, his fault, without observing the procedure for applying this measure of responsibility established by law, which, in the event of a dispute, is subject to judicial review.

Thus, taking into account the named resolution, the head of the organization, dismissed under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, is not entitled to compensation if the dismissal is made in compliance with the provisions of Art. 193 and 195 of the Labor Code of the Russian Federation of the order of application of disciplinary sanctions. Judicial practice confirms this conclusion (determination of the RF Armed Forces dated 03.03.2005 No. 5-B05-156, resolution of the Presidium of the Moscow Regional Court dated 15.10.2008 No. 565).

2. The procedure for filling out work books is established by the Rules for maintaining and storing work books, making forms work book and providing employers with them, approved by Decree of the Government of the Russian Federation dated 04.16.2003 No. 225 "On work books" (hereinafter referred to as the Rules), as well as the Instructions for filling out work books, approved by the Resolution of the Ministry of Labor of Russia dated 10.10.2003 No. 69 (hereinafter referred to as the Instruction).

Taking into account the requirements of clause 5.5 of the Instruction, the wording of the entry in the work book (and, therefore, in the order of dismissal) should be as follows: “Dismissed in connection with the adoption by the authorized body of the legal entity of a decision to terminate the employment contract, clause 2 of Article 278 of the Labor Code of the Russian Federation ".

According to clause 10 of the Regulation, all entries in the work book, including the record of dismissal, are made on the basis of the corresponding order. Clause 5.1 of the Instruction establishes that the details of the order (instruction) or other decision of the employer are entered in the column "Name, date and number of the document on the basis of which the entry was made" of the work book. Thus, in the work book, it is the appropriate order (order) of the employer that is indicated as the basis for dismissing the employee, and not the minutes of the general meeting of participants.

3. The order of dismissal must be drawn up according to the unified form of the order (order) on termination (termination) of the employment contract with the employee (dismissal) (form No. T-8), which is approved by the Resolution of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1 1. According to the instructions for filling out form No. T-8, the order is drawn up by an employee personnel service, is signed by the head of the organization or a person authorized by him.

The General Director, without a power of attorney, acts on behalf of the company, including approving the states, issuing orders and giving instructions that are binding on all employees of the company (clause 3 of article 40 of the Federal Law of 08.02.1998 No. 14-FZ "On limited liability companies "). It seems clear that the CEO has this authority throughout his work, including on the last day of work.

Thus, the general director has the right to sign the order of his dismissal on the last day of work. In the event that on that day the general director for some objective reasons (for example, due to temporary disability) did not work or did not sign the order of his dismissal himself, this can be done by the person authorized by him to sign such orders.

1 Since January 1, 2013, the use of unified forms of documents is not mandatory, companies can approve and use their own forms.

The head of the company can be dismissed of his own free will (Article 80 of the Labor Code of the Russian Federation), by agreement of the parties to the employment contract (Article 78 of the Labor Code of the Russian Federation), at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation), etc.

In addition to general grounds, it is allowed to dismiss on special additional grounds (Article 278 of the Labor Code of the Russian Federation):

removal from office of the debtor company in accordance with the legislation on (clause 1 of article 278 of the Labor Code of the Russian Federation);
the person made a decision to terminate the employment contract with the director (clause 2 of article 278 of the Labor Code of the Russian Federation);
other grounds provided for by the employment contract (clause 3 of article 278 of the Labor Code of the Russian Federation). At the same time, the Labor Code does not limit the list of additional grounds for the dismissal of a company director.

The main thing is that they are indicated in the employment contract (an additional agreement to it) and comply with the current legislation.

Who can terminate an employment contract with a director

The decision to terminate the powers of the head of the company (general director) can be made (clause 2 of article 278 of the Labor Code of the Russian Federation):

an authorized body of the company, for example, the board of directors (subparagraph 2 of paragraph 2.1 of article 32, subparagraph 4 of paragraph 2 of article 33, article 40 of the Federal Law of 08.02.98 No. 14-FZ, subparagraph 8 of paragraph 1 of article 48, subparagraph 9, clause 1 of article 65 and clause 3 of article 69 of the Federal Law of December 26, 1995 No. 208-FZ);
the only owner of the company's property (clause 2 of article 7 of the Federal Law of 08.02.98 No. 14-FZ, clause 2 of article 3 and clause 3 of article 47 of the Federal Law of 26.12.95 No. 208-FZ);
person (body) authorized by the owner.

The decision does not need to indicate specific circumstances confirming the need to terminate the employment contract.

Compensation in connection with early dismissal of a director

If a decision is made to terminate the employment relationship with the director in the absence of culpable actions (inaction) of the director, compensation is paid to him (Article 279 of the Labor Code of the Russian Federation).

The amount of compensation to a director upon dismissal is established by an employment contract. But the amount of compensation cannot be lower than three times the average monthly wage of an employee. The parties to the employment contract follow its size even at the conclusion of the employment contract. If this does not happen, its size can be determined and fixed later in a supplementary agreement.

Sometimes the condition about is not included in the employment contract with the director either at the time of hiring or later. According to some employers, in this case, when a director is dismissed on the basis of paragraph 2 of Article 278 of the Labor Code, the company does not have to pay compensation: there is no entry in the contract - there is no obligation to pay.

The amount of compensation not specified in the employment contract

It turns out that in the absence of a condition on dismissal compensation in the employment contract, the director still needs to pay it. How much?

The parties to the employment contract may conclude an additional agreement to the employment contract immediately prior to formalizing the dismissal. In it, they will fix the amount and procedure for payment of compensation.

The employee's salary is 100,000 rubles. Also, the company pays an annual bonus in the amount of a salary if during the year the employee did not have disciplinary penalties and absences from working hours, with the exception of 28 calendar days of annual paid leave. According to the regulation on bonuses, if an employee had days off work for other reasons, including in connection with dismissal before the end of the year, the amount of the bonus is calculated in proportion to the number of working days actually worked during the year. At the same time, 28 calendar days of vacation are equal to 20 unworked working days.

R.L. During 2014, Khitretsov was absent from work for 28 calendar days during the period of annual leave and did not work 7 working days in December due to his dismissal. The average monthly earnings at the time of dismissal is 92,424.24 rubles.

The sum of three times average monthly earnings is 277,272.73 rubles. (92,424.24 rubles × 3 months). The amount of earnings lost in connection with the dismissal is less than this value (142,749.35 rubles.< 277 272,73 руб.). Это значит, что компенсация должна быть выплачена в размере трехкратного среднего месячного заработка, то есть в сумме 277 272,73 руб.

I. Grigoriev,
labor law expert

Sometimes employers are obliged to pay an employee upon dismissal not only the salary for the time worked in the month of dismissal and compensation for unused vacation but also other amounts.

It is with their calculation and payment procedure that difficulties often arise, since the Labor Code of the Russian Federation does not determine the exact procedure for their calculation or their payment.

And if you do something wrong, there may be complaints from the employee and the labor inspectorate, if he complains there. Claims from the inspectors cannot be avoided if an incorrect calculation of these payments will lead to an underestimation of the taxable base for income tax, personal income tax and contributions.

What payments and when are due to the employee

Upon dismissal for some reason, the obligation to make payments and their amount depend on who is the employer - the organization or the entrepreneur.

WE TELL THE EMPLOYEE

The employment authority will issue solution for receiving from the former employer earnings for the third month employment, if within 2 weeks after the dismissal, the employee contacts this body and does not have a job Art. 178 of the Labor Code of the Russian Federation.

If an entrepreneur dismisses employees in connection with the termination of activities and p. 1 h. 1 tbsp. 81 of the Labor Code of the Russian Federation or downsizing or downsizing item 2 h. 1 tbsp. 81 of the Labor Code of the Russian Federation, then severance pay and earnings for the period of employment are paid to dismissed employees in the amount stipulated by the employment contract Art. 307 of the Labor Code of the Russian Federation... If nothing is spelled out in the contract with the employee, then nothing is paid at all The cassation ruling of the Kirov Regional Court dated 06.09.2011 No. 33-3185; The cassation ruling of the Khabarovsk Regional Court dated 09.07.2010 No. 33-4591; Determination of the Moscow Regional Court dated 05/27/2010 No. 33-8604.

Payments to employees upon dismissal on other grounds are the same for organizations and entrepreneurs.

Severance pay

The Labor Code obliges to pay severance pay only upon dismissal for the following reasons.

Grounds for dismissal	Severance pay
Liquidation of the organization p. 1 h. 1 tbsp. 81 of the Labor Code of the Russian Federation	Average monthly earnings for all employees, excluding m Art. 178 of the Labor Code of the Russian Federation: seasonal workers who receive severance pay equal to two weeks' average monthly earnings Art. 296 of the Labor Code of the Russian Federation; employees hired for a period of up to 2 months, to whom severance pay is paid in the amount established either by the local regulation, or a collective or labor agreement. If these documents do not say anything about the amount of severance pay, nothing should be paid over Art. 292 of the Labor Code of the Russian Federation
Reduction of the number or staff of employees of the organization item 2 h. 1 tbsp. 81 of the Labor Code of the Russian Federation
Refusal of an employee to transfer to another job for medical reasons clause 8 h. 1 art. 77 of the Labor Code of the Russian Federation	Two-week average earnings to Art. 178 of the Labor Code of the Russian Federation
Call for military service(recruitment for alternative service) p. 1 h. 1 tbsp. 83 of the Labor Code of the Russian Federation
Reinstatement at work by a court or labor inspectorate of an employee who previously performed this work at item 2 h. 1 tbsp. 83 of the Labor Code of the Russian Federation
Refusal of the employee to transfer to work in another locality together with the employer m Clause 9, Part 1, Art. 77 of the Labor Code of the Russian Federation
Recognition of an employee as completely incapable of labor activity in accordance with the medical report m p. 5 h. 1 tbsp. 83 of the Labor Code of the Russian Federation
The employee's refusal to continue working in connection with a change in the terms of the employment contract for reasons related to a change in organizational or technological conditions labor a Clause 7, Part 1, Art. 77 of the Labor Code of the Russian Federation
Violation, through no fault of the employee, of the rules established by law for concluding an employment contract, if this excludes the possibility of his continuation of work and it is not possible to transfer him to another job at Clause 11, Part 1, Art. 77 of the Labor Code of the Russian Federation*	Average monthly earnings to Art. 84 of the Labor Code of the Russian Federation

* Such violations include cases of concluding an employment contract with persons and Art. 84 of the Labor Code of the Russian Federation:

who are deprived by a court verdict of the right to hold certain positions or engage in certain activities;
for whom specific work is contraindicated for medical reasons;
who do not have a certificate of education, and according to the legislation, the performance of work requires special knowledge;
who are disqualified, deprived of a special right or expelled from the Russian Federation;
who are dismissed from the state or municipal service if there are legislative restrictions on their employment;
who are prohibited by law from engaging in certain types of work (for example, minors cannot be admitted to harmful work at Art. 265 of the Labor Code of the Russian Federation).

Severance pay is a payment for the very fact of being fired. Therefore, it must be paid to the employee on the day of dismissal. h. 4 tbsp. 84.1, art. 140 of the Labor Code of the Russian Federation... The basis for its payment is an order, which indicates the appropriate basis for dismissal. There is no need to issue a separate order for the payment of benefits.

Earnings for the period of employment

This payment is due only to employees who are dismissed from organizations on two bases m Art. 178 of the Labor Code of the Russian Federation:

in case of liquidation of the organization;
in the event of a reduction in the number or staff of employees.

Employee category	For what period is the average monthly earnings paid
Seasonal workers	Not paid
Employees hired for up to 2 months	Not paid
Part-timers	Not paid
Persons working in the Far North and equivalent areas	Until the moment of employment, but not more than 6 months after dismissal Art. 318 of the Labor Code of the Russian Federation
Other employees	Until the moment of employment, but no more than 3 months after dismissal Art. 178 of the Labor Code of the Russian Federation

Upon the expiration of the first month after the dismissal of the former employee nothing is paid because on the day of dismissal, severance pay has already been paid articles 178, 318 of the Labor Code of the Russian Federation.

Earnings for the period of employment should provide laid-off workers with material support after dismissal, provided that they did not immediately find another job. Therefore, it is paid only after the employee confirms that he has not yet found a new job.

Sometimes the employee (especially in the event of liquidation of the organization) earnings for the period of employment are paid immediately on the day of dismissal, without waiting for confirmation that the employee has not found a job. Such a payment is economically unjustified, since the employer has no evidence confirming its validity Art. 252 of the Tax Code of the Russian Federation.

What documents must be required from a former employee to pay wages for the period of employment, depends on which month after dismissal it is paid.

Period	The amount of the payment and the documents on the basis of which it is paid articles 178, 318 of the Labor Code of the Russian Federation
After the second month after dismissal for ordinary workers	Average monthly earnings written statement; work book **, in which there is no record of admission to a new place of work
Upon the expiration of the second and third months after dismissal for persons working in the Far North and equivalent areas
After the third month after dismissal for ordinary employees	Average monthly earnings, if former employee will present: written statement; work book * without a record of admission to a new place of work; the decision of the employment authority to maintain the average wage for the third (fourth, fifth, sixth) month after dismissal
After the fourth, fifth and sixth months after dismissal for persons working in the Far North and equivalent areas

* If the former employee gets a job before the expiration of the second or subsequent months after the dismissal, then the average monthly earnings must be paid to him in proportion to the "unemployed" period on the basis of a written application and a copy of the work book certified at the new place of work. articles 178, 318 of the Labor Code of the Russian Federation.

** It must be copied, certified and stored.

An employee can apply for this payment at any time, even one year after being laid off.

Compensation for early dismissal

WE TELL THE EMPLOYEE

If organization located in the process of liquidation, but also not excluded from the Unified State Register of Legal Entities, for earnings saved for the period of employment, the employee must contact the liquidation commission as soon as possible. After all, after the exclusion of the organization from the Unified State Register of Legal Entities, it will no longer be possible to receive this payment.

When the organization is liquidated or its size or staff is reduced, the employer must notify employees in writing about the upcoming dismissal at least 2 months in advance. h. 2 tbsp. 180 of the Labor Code of the Russian Federation... At the same time, with the consent of the employee, the employment contract with him can be terminated before the expiry of the notice of dismissal with the payment of additional compensation, in addition to the severance pay and the average earnings retained by the employee for the period of employment.

The amount of additional compensation is determined based on the average monthly earnings of the employee, in proportion to the time remaining before the expiration of the warning period h. 3 tbsp. 180 of the Labor Code of the Russian Federation... For the organization, the payment of such additional compensation is not entirely profitable, because the employee will receive it not for work, but for agreeing to early dismissal.

Compensation for top managers

The Labor Code provides for special compensation for dismissal and Art. 181, paragraph 2 of Art. 278, art. 279 of the Labor Code of the Russian Federation:

in connection with the change of the owner of the property of the organization - for its head, his deputies and the chief accountant.

Change of the owner of the property of the organization - these are, in particular:

privatization of state or municipal property Art. 1 of the Law of December 21, 2001 No. 178-FZ;
transition to state property property owned by the organization and clause 2 of Art. 235 of the Civil Code of the Russian Federation;
sale of the enterprise as property complex but articles 559-566 of the Civil Code of the Russian Federation.

There is no change in the owner of the organization's property when the composition of participants in an LLC or JSC changes clause 1 of Art. 66, paragraph 3 of Art. 213 of the Civil Code of the Russian Federation; Clause 32 of the Resolution of the Plenum of the Armed Forces dated March 17, 2004 No. 2;

without explanation - for the head of the organization in the absence of any culpable actions on his part.

Compensation to top managers must be paid on the day of dismissal in the amount of at least three monthly earnings per Art. 181, paragraph 2 of Art. 278, art. 279 of the Labor Code of the Russian Federation... In these cases, top managers are not paid severance pay and average monthly earnings for the period of employment.

Other payments upon dismissal

An employment or collective agreement may provide for payments to a dismissed employee on other grounds, as well as increased payments upon dismissal in cases established by the Labor Code of the Russian Federation x Articles 178, 279 of the Labor Code of the Russian Federation.

Calculation of payments upon dismissal

The calculation period for all these payments, including for the average earnings saved for the second and subsequent months of the employment period, is the same. This is 12 calendar months prior to dismissal. Moreover, if you fire an employee on the last day of the month (that is, this is the last day of work for an employee), then this month is included in settlement period... If the dismissal is made on any other day of the month, then the settlement period is 12 calendar months before the month in which the employee was dismissed. Art. 139 of the Labor Code of the Russian Federation; p. 4 of the Regulations, approved. Government Decree of December 24, 2007 No. 922 (hereinafter - the Regulation).

The calculation of payments upon dismissal is not affected in any way by the system of remuneration used in the organization: salary, piecework, based on hourly, daily or monthly tariff rates.

Under normal working hours accounting, payment is due for working days for the months after dismissal on a five-day or six-day basis. working week, depending on the mode of operation of the organization, falling on the pay period, that is, for a specific month after dismissal clause 9 of the Regulations... In this case, the severance pay paid on the day of dismissal must be calculated for working days falling on the first month after the day of dismissal.

To calculate the severance pay (earnings for the period of employment), the average monthly earnings in this case can be calculated using the formula e