Article 140 of the Labor Code of the Russian Federation with comments

Termination of an employment contract today is carried out in accordance with the provisions of Chapter 13 of the Labor Code of the Russian Federation as the main legal regulator of the procedure for terminating an employment contract.
Since, for all the reasons provided for in this chapter, an employee who terminates his employment in a particular company must receive a settlement, it is reasonable to ask about the timing of such a settlement. The answer to this is also contained in the Labor Code. What are the deadlines for preparing calculations and transferring all funds due? Dear readers! To solve your specific problem, call the hotline or visit the website. It's free.
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Payments due to an employee upon dismissal

The dismissal of an employee imposes an obligation on the employer to make appropriate payments to him, the amount of which is directly related to the reason for the termination of work. Such payments, in particular, include: wages for a certain period, compensation for unused vacation by the employee and severance pay.

At your own request. It can be logically assumed that in this option he is provided with the most limited list of various payments. The employer is obliged to pay only wages for the period worked, as well as compensate for unused vacation by the employee.
By agreement of the parties. Here, the procedure for providing payments is generally similar to the basis indicated above. As a general rule, the employer pays wages for a certain period worked and reimburses the amount of unused vacation. However, the employee should study the employment contract in detail to determine what additional compensation may be assigned upon termination.
To reduce staff. In this situation, taking into account the specifics of this method of dismissal, associated with the urgency of terminating the employment contract, the employee is provided with payment in the form of severance pay. It is important to say that the amount of compensation will be equal to the average monthly salary, it can be paid up to 2 months - before employment with a new employer.

Severance pay is calculated based on data on the category of employee - seasonal workers; upon liquidation of an enterprise, an amount equal to the average salary for two weeks is due; for northerners, the payment does not change, but increases to 3 months.

Advice! It must be remembered that the fact that an employee has a debt allows you to withhold no more than 20% of the previously excessively paid wages in your favor. This procedure can be carried out by agreement with the former employee, who is asked to give written consent to withhold money.

Termination of an employment contract, paragraph 7, article 77

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To terminate an employment contract, at least one of the following grounds must be met:

resignation letter on the employee’s own initiative;
order to terminate the employment relationship due to expiration;
availability of supporting documentation if this is a violation of labor regulations;
incorrect or failure to fulfill labor obligations.

All relationships of this kind are regulated by the Labor Code of the Russian Federation. It is this legal act that is referenced in all documents. Upon dismissal, deterioration of the employee's position is unacceptable.

The Labor Code clearly defines the rights and responsibilities upon termination of employment relationships:

the employee undertakes to independently notify the employer two weeks before the planned date of departure, if this is a full-time vacancy. If this is a probationary period or a fixed-term employment contract, then three days in advance. In some situations, it is possible to warn on a day-to-day basis;
An employee is allowed to resign while on vacation or while on sick leave.

The employer's responsibilities are also regulated by the Labor Code:

he undertakes to pay the final payment - all money due on the last day or the next after the application;
in case of violation of labor discipline, management must provide supporting documents and give explanations to the violator.

Final settlement: highlights

When making the payments indicated above, you need to take into account that there are some nuances that determine the respective responsibilities of the parties. The employer may withhold compensation for unused vacation if the employee has arrears, but he does not have the right to do this if the enterprise is liquidated or the employee is dismissed due to layoffs. In addition, the citizen is given all the documents: work book, contract, decision to terminate the contract.

There are the following methods used to determine the final payment amounts:

Salary upon dismissal is calculated by dividing the salary received by the employee by the number of working days in the month and then multiplying the resulting number by the days worked. At the same time, you must not forget to deduct income tax of 13% from the final figure.
Unused vacation is determined by multiplying the number of allotted days for rest by the average salary per day.
Calculation of severance pay - the monthly salary is divided by the number of days worked, and the resulting number is multiplied by the working days in the next paid month.

The essence of Article 140 of the Labor Code

Part 1 art. 140 of the Labor Code of the Russian Federation states that all payments due to an employee must be made on the day of dismissal - in this case, this means the last worker. Also, Article 140 comes with a comment that an employee who did not work on that day can submit a request for payment, which must be satisfied no later than 24 hours.

It is important to know! In Art. 140 of the Labor Code also has a provision that allows an employee to protect his rights upon dismissal by challenging the final settlement amount. Here, an imperative requirement is imposed on the employer to pay undisputed compensation until the end of the labor dispute that has arisen between them.

Payment terms

The Labor Code sets the terms for making payments to an employee upon dismissal as compactly as possible - taking into account the interests of both parties. In general, these intervals are specified in Art. 140 of the Labor Code of the Russian Federation, however, it is worth noting that if an employee works in shifts, every other day, then the date of dismissal will be determined as 2 calendar days from the last working day.

Standard situation

Payments to the employee must be made on the last working day. However, in practice, there are cases when an employee leaves his place on a weekend or holiday.

In this case, if leaving is carried out at the request of an employee on a non-working day, he can write a statement indicating the date of both his last return to work and the upcoming one - in order to avoid disputes. Situations where dismissal is initiated by the employer on a day off, in practice become a frequent example in court proceedings. However, it is believed that if the employment contract is terminated due to a reduction in staff, then the employee is recognized as having been properly notified in accordance with Article 180 of the Labor Code, if, of course, the communication actually took place.

Calculation upon employee's request

When making payments upon request, the employee must fill out an appropriate application addressed to the director of the organization, indicating the reason for absence from the workplace on the day of dismissal, with a request to make the final payment no later than the deadline established in Article 140 of the Labor Code of the Russian Federation.

If the document is filled out with all the necessary details, then the payment will be made the next day after its submission, again, in accordance with Part 1 of Art. 140 Labor Code of the Russian Federation.

Dismissal after vacation

An employer cannot fire a subordinate on his own initiative during vacation. An employee has the right to submit a letter of resignation while on vacation and immediately after it. The employee must notify the director of the organization of his decision within two weeks in accordance with Article 80 of the Labor Code of the Russian Federation. If an employee returns from unused vacation, he has the right not to work for two weeks, since this time is included in the work.

Payment of the undisputed amount in case of disagreement

The employee has the right to challenge the calculated amount upon dismissal in accordance with Article Part 2 of Art. 140 Labor Code of the Russian Federation. It also provides for the employer’s obligation to pay the recognized and undisputed part of the money immediately - regardless of the stage of the labor dispute.

How to make a calculation if an employee was absent from work

There are often situations when an employee is not at work on the date of dismissal. There can be many reasons for this: a day off on a shift schedule, reluctance to come due to dismissal for culpable reasons, sudden illness. How long does it take for dismissal pay to be paid in such circumstances?

In such a situation, the employer can do the following:

if wages are paid by bank transfer, transfer the required amounts to the account of the dismissed person strictly on his last working day;
if the payment is made through a cash register or there are insurmountable obstacles to a non-cash transfer, pay the salary no later than the day following the date of the employee’s official request for it (Part 1 of Article 140 of the Labor Code of the Russian Federation).

Delay of salaries and other accruals: measures of responsibility

The legislation provides for a range of rules aimed at both holding employers accountable for delays and compensating for lost wages. Thus, in accordance with the norms of the Labor Code of the Russian Federation, the manager may be obligated, if trade union organizations need to conduct an inspection, to eliminate the violations committed.

Attention! The employer can also be held administratively liable (for delays in providing wages) and criminally (if there are selfish motives and interests). The employee has the right to apply for judicial protection, to the labor dispute commission, as well as the EAEU - the guarantor of legality in the area in question.

How to pay when taking leave with subsequent dismissal

An employee has the legal right to go on vacation with subsequent dismissal and not return to work after the end of the rest period (Article 127 of the Labor Code of the Russian Federation). In this case, the payment period for dismissal of vacation pay and other accruals is different:

the amount of vacation pay is issued no later than 3 calendar days before its start (Part 9 of Article 136 of the Labor Code of the Russian Federation);
wages and related accruals are paid on the last working day, which will be the day preceding the start date of the vacation (see, for example, the definition of the Constitutional Court of the Russian Federation dated January 25, 2007 No. 131-О-О).

Responsibility for violation of payment deadlines

If the deadline for issuing a calculation upon dismissal of an employee is missed, the employer faces:

fines for administrative violation of labor legislation - under Part 6 and Art. 5.27 Code of Administrative Offenses of the Russian Federation;
financial liability - in the form of a penalty on the amount of debt for each day of delay (Article 236 of the Labor Code of the Russian Federation);
criminal liability - in case of delay of the entire amount for a period of more than 2 months or part of the due accruals for a period of more than 3 months (Article 145.1 of the Criminal Code of the Russian Federation).

Also, if legal disputes arise, there is a possibility that an amount of moral damages will be awarded in favor of the dismissed person (Article 237 of the Labor Code of the Russian Federation).

Order

One of the easiest and simplest options for dismissal is the option of dismissal by agreement of the parties. With this option, the employee does not have to work the two weeks required by law, since the legitimacy of the employment contract ceases from the day the subject is dismissed.

To dismiss, it is enough to write a statement to the manager and indicate that the dismissal occurs by mutual consent without claims against each other. After signing the application, the enterprise issues an order and the resigning citizen receives a payslip and payments (according to the Labor Code)