Error in calculation upon dismissal. Fix it or leave it as is?

According to the general rule (Part 4 of Article 84.1 of the Labor Code of the Russian Federation), on the day of termination of the employment contract, the employer is obliged to issue the employee a work book and make payments to him in accordance with 140 of the Labor Code of the Russian Federation.

Article 140 of the Labor Code of the Russian Federation obliges the employer, upon termination of the employment contract, to pay all amounts due to the employee on the day of his dismissal. If the employee did not work on the day of dismissal, the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.

In the event of a dispute about the amount of amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the specified period.

Next, we will consider examples of situations that arise due to incorrect calculations when dismissing an employee, as well as possible options for the employer’s actions. We will not consider cases where the settlement is not paid intentionally, due to the difficult financial situation of the employer and for other reasons.

Payments upon dismissal: salary balance

The first type of payment upon dismissal is the remaining salary. The procedure for calculating it depends on the wage calculation scheme, which may look different.

With a commonly used time-based salary scheme, the calculation of wages upon dismissal will be calculated using the formula:

SALARY (BALANCE) = (OKL / RD) × OD) – DEBT,

Where:

OKL - monthly salary of the employee;

RD - the number of working days in the month for which the salary balance is calculated;

OD - the number of days worked but not paid, including the day of dismissal;

DEBT - existing debts of an employee to the employer (for example, for unpaid advances - on the basis of Article 137 of the Labor Code of the Russian Federation, but taking into account the restrictions established by Article 138 of the Labor Code of the Russian Federation).

Let us note that among Russian employers it is common to use the unified form No. 61 for the purpose of documenting calculations of wages and other payments upon dismissal.

You can learn more about the use of this unified form in the article “Unified form No. T-61 - form and sample.”

ConsultantPlus experts explained step by step how to make calculations when dismissing an employee due to conscription into the army. To do everything correctly, get trial access to the system and go to the Ready solution. It's free.

Step by step procedure

Let's consider the procedure for going to court, the prosecutor's office and the labor inspectorate, as well as what else can be demanded, in addition to the money earned.

Going to court

We have identified 9 steps that must be followed to resolve the situation in court.

Step 1: collecting documents

To confirm that you did not pay your salary upon dismissal, you will need:

• a copy of the work book;
• a copy of the employment contract;
• certificate from the Federal Tax Service (information on salary accruals);
• a copy of the wage regulations;
• income certificate;
• notice of service of the claim on the defendant;
• other documents related to labor activity.

It is not necessary to submit all documents. Sometimes a copy of the work book and contract is enough. But the more evidence, the higher the likelihood of the claim being satisfied.

Note: if the plaintiff worked unofficially, he will have to prove in court the fact of fulfilling his labor duties. Any documents of the organization that have his signatures on them will be useful. You can also apply to call witnesses.

Step 2: drawing up a statement of claim

The statement of claim is drawn up according to the rules of Art. 131 Code of Civil Procedure of the Russian Federation. What it says:

• name, address of the court;
• Full name, address, telephone number of the plaintiff;
• name of the organization, full name respondent manager;
• period of employment (dates);
• from what time earnings are not accrued;
• the amount of unpaid wages with calculation;
• the amount of the penalty for late payment;
• measures taken to resolve the issue pre-trial (if taken);
• claim;
• date of compilation and signature.

Step 3: sending the statement of claim to the defendant

If the employer does not pay the dismissal payment, he is the defendant. From October 2021, plaintiffs are required to send them separate copies of statements of claim, whereas previously this was done by the courts.

You can send the application by registered mail with acknowledgment of delivery, or by e-mail if the plaintiff receives reports on the viewing of letters. The notice or report will be needed later for the court.

Step 4: Submitting documents to the court

Once the defendant receives a copy of the claim, you can file documents in the district or city court. If the employer does not pay wages upon dismissal, the magistrate court will not consider such a case.

Important! According to Art. 333.36 of the Tax Code of the Russian Federation, if an enterprise has not paid wages upon dismissal and the employee recovers it through the court, there is no need to pay a state fee when filing a claim. All plaintiffs in labor disputes are exempt from payment.

Step 5: Pretrial Hearing

The judge accepts documents for processing within five days from the date of receipt, then issues a ruling on the appointment of a preliminary hearing (Article 152 of the Code of Civil Procedure of the Russian Federation). Copies of the determination are sent to both parties.

At the pre-hearing, the claims and circumstances of the case are clarified, evidence can be presented, and petitions can be filed. It is carried out in the form of a conversation.

Note! If the defendant does not come to the conversation, although he has been notified of the date and time, this will not become a basis for refusing to consider the claim.

Step 6: Litigation

After the pre-hearing, the judge makes a decision to assign the case to trial. Here we are already studying evidence confirming that wages were not paid after dismissal. If a request is made to call witnesses, they are also questioned.

Step 7: Making a decision

If the calculation was not made on the day of dismissal and the employee went to court, the case will be considered within two months (Article 154 of the Code of Civil Procedure of the Russian Federation). The judge makes a decision alone, it comes into force in a month, but is subject to immediate execution (Article 211 of the Code of Civil Procedure of the Russian Federation).

Step 8: obtaining a decision and writ of execution

The writ of execution will be issued immediately after the proceedings. A copy of the decision can be obtained within five days from the date of adoption by contacting the office or the assistant judge (Article 214 of the Code of Civil Procedure of the Russian Federation).

Step 9: receiving payment based on a court decision

Having received a writ of execution for the collection of unpaid funds, the plaintiff can apply with it to the FSSP at the location of the defendant. Then the money will be forcibly withheld from him, taking into account the provisions of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings.” They can seize the company’s accounts, seize property to pay off the debt, but most often everything is resolved by softer methods if the debtor is determined to fulfill the decision himself.

Complaint to the prosecutor's office

The second institution where you can turn if you haven’t been paid for your dismissal is the prosecutor’s office. This is done like this:

1. A person submits a complaint, it is considered within 30 calendar days (Order of the Prosecutor General's Office of Russia dated January 30, 2013 No. 45 “On approval and introduction...”).
2. During the consideration of the complaint, the prosecutor or other authorized person conducts an on-site inspection of the enterprise.
3. Based on the results, a presentation is issued indicating measures to eliminate the violation and deadlines. They may be subject to administrative liability.

Note! Acting in the interests of the applicant, if the dismissal payment is not paid, the prosecutor has the right to file a claim in court (Article 45 of the Code of Civil Procedure of the Russian Federation).

Contents and sample of the complaint

If the payment was not made on the day of dismissal and a complaint is filed with the prosecutor’s office, it must indicate:

• name and address of the prosecutor's office, full name prosecutor;
• Full name, address and telephone number of the applicant;
• FULL NAME. manager, name and address of the employing organization;
• periods of work;
• the period of non-payment, the amount of unpaid funds;
• request for an inspection;
• date, signature.

Sample complaint

Complaint to the labor inspectorate

The third place to go if the dismissal payment has not been paid is the labor inspectorate. The complaint will be reviewed within a month and the results will be reported in writing. Based on the results of the inspection, the employer may be held administratively liable and an order may be issued to eliminate the violation. If he does not comply with the requirements of the order, a decision on forced execution is made, which has the force of a writ of execution (Article 360.1 of the Labor Code of the Russian Federation).

You can submit a complaint in several ways:

1. Personally.
2. Through Onlineinspektsiya.RF.
3. Russian Post.
4. Through a representative by proxy.

Anonymous requests are not considered by the inspectorate.

Contents and sample of the complaint

If the dismissal payment is not paid, the complaint to the inspectorate must contain the same data as for the prosecutor's office. There is no unified form, but the department’s website usually has its own samples. The main thing is to provide information about all parties and circumstances of the case.

Payments upon dismissal: calculating the duration of unused vacation

In most cases, resigning employees have unused vacation days. Their number is determined by the formula:

NDO = YEARS × 28 + 28 / 12 × MONTHS – HOLIDAYS,

Where:

NDO - compensation for unused vacation days;

YEARS - the number of full years of work in the company;

MONTHS - the number of months in partial years of work in the company;

LEAVES - the number of vacation days granted (compensated) by the time of dismissal.

Moreover, if a person has worked for a company for 11 full months from the date of signing the employment contract, then it is considered that he has worked for a full year (clause 28 of the Rules on Leave, approved by the People's Commissariat of Labor of the USSR dated April 30, 1930 No. 169).

If your work experience in the company does not exceed 11 months, then the 2nd part of the above formula is used to calculate the number of vacation days:

NDO = 28 / 12 × MONTHS – HOLIDAYS.

If the employee has worked for the company from 5.5 to 11 full months and his dismissal is due to:

• liquidation of the enterprise;
• staff reduction;
• reorganization, temporary suspension of work;
• conscription of an employee into the army;
• unsuitability for work,

then the NDO indicator, subject to the conditions specified in clause 28 of the Leave Rules, will be calculated according to the formula (letter of Rostrud dated 04.03.2013 No. 164-6-1):

NDO = 28 – HOLIDAYS.

Let us now consider how compensation for unused vacation is calculated.

Arbitrage practice

In practice, there are many cases of non-payment of settlement payments upon termination of an employment contract. Here are some examples:

1. The plaintiff was not paid upon dismissal. He wanted to be reinstated in his position and collect money, change the wording in the work book. By decision No. 2-1029/2014 2-1029/2014~M-991/2014 M-991/2014 dated August 28, 2014, the wording was changed and the remaining claims were rejected.
2. The plaintiff was not paid his salary upon dismissal; he went to court to recover it. By decision No. 2-1111/2014 2-1111/2014~M-1075/2014 M-1075/2014 dated November 10, 2014 in case No. 2-1111/2014 the requirements were satisfied.
3. The plaintiff was not paid settlement and severance pay for three months during the reduction; he recovered everything through the court (Decision No. 2-1177/2011 of September 29, 2011 in case No. 2-1177/2011).

Dismissal during vacations without pay: nuances

It is possible that during the period of work the employee took leave without pay - dismissal in this case can be compensated under special conditions.

The fact is that days of vacation at your own expense, starting from the 15th day of such vacation in the working year, are not included in the length of service used in determining the duration of vacation (Article 121 of the Labor Code of the Russian Federation). This means that with a sufficiently long vacation at your own expense, the indicators in the formulas we discussed above can change significantly.

For example, the YEARS indicator in the first formula for calculating the duration of compensated leave will be applied only if the person has worked for at least 1 working year (at least 11 months from the date of signing the employment contract). If a person worked exactly that much, but at the same time took 15 days of vacation at his own expense, then 1 month will not be taken into account. This will reduce the number of unused vacation days paid upon termination.

For example, an employee worked for 10 months, but took 16 days of unpaid leave. The number of days of unused vacation for calculating compensation upon dismissal will be 21 days (28 / 12 × 9).

Lawyer's answers to private questions

Where to turn if they don’t pay me upon dismissal and I received a gray salary?

It is unlikely that it will be possible to recover the unofficial part of the gray salary even through the courts. You can file a complaint with the labor inspectorate or the prosecutor's office.

What to do if the employer did not pay for the dismissal and then filed for bankruptcy?

The corresponding claim can be submitted to the arbitration court; in this situation, employees are creditors. An alternative option is to apply to the labor inspectorate. But the demands of employees are fulfilled in the second place (Article 134 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”). Debts are repaid using property sold as part of bankruptcy proceedings.

What to do if you didn’t pay the full dismissal payment, but only a part?

The remaining amount can be recovered in court.

I was not paid the final payment upon dismissal, although according to the documents all payments were made and a pay slip was issued. What to do and how to prove everything in court?

One option is to submit to the court a statement of the bank account into which the salary is received. There it will be clear that the money was not transferred.

The employer sent me a dismissal order for non-payment of wages, I received it by mail. I was on sick leave. He paid for his wages, but not for his sick leave. Is he obliged to do this?

Yes, sick leave is paid by the organization if it is opened before the termination of the employment contract or within 30 days after (Part 3 of Article 13 of the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance”).

Calculation of severance pay

In general, severance pay is not paid upon dismissal. But the law provides for its registration in the following 4 situations.

1. When the benefit is paid in accordance with the agreement between the employer and the employee.

The amount of such benefit is determined in the agreement itself. At the same time, the employer has the opportunity to successfully challenge its too large amount, despite the preliminary consent to the payment (appeal ruling of the Moscow City Court dated February 18, 2014 No. 33-3069).

2. When benefits are assigned in the event of staff reduction or liquidation of an enterprise.

The amount of such benefit is 1 average monthly salary. This payment is supplemented by:

• another monthly salary if the person does not find a job within a month after dismissal;
• monthly earnings after 2 months after dismissal, if the person applied to the employment center (within 2 weeks after dismissal), but was not employed.

3. When the benefit is paid in the amount of 2 weeks' earnings, if the dismissal occurred due to the reasons mentioned in Art. 178 Labor Code of the Russian Federation. For example, due to:

• deterioration of the employee’s health;
• conscription into the army;
• return to work of the replaced employee;
• employee refusal to transfer when the employer moves to a remote area.

4. When benefits are provided in the amount of average monthly earnings in the event that a person is dismissed due to the employer’s violation of the rules for concluding an employment contract - in the manner prescribed by Art. 84 Labor Code of the Russian Federation.

Benefits are paid that can be calculated at the time of dismissal, along with the remaining salary and compensation for unused vacation. The second and third payments under redundancy benefits are made in agreement with the employee (based on the documents provided by him certifying the legality of receiving such payments).

WHY CALCULATIONS CAN BE INCORRECT

Most often, upon dismissal, the following situations are observed with partial non-payment due to incorrectly calculated amounts.

Situation 1. Not full compensation for unused vacation

For some reason this is one of the most common situations. It is usually caused by:

• incorrect calculations of the remaining days of the main vacation (they were not included in the time sheet, 1C program, journal and other recording errors);

• incorrect proportional calculation of vacation days for irregular days;

• incorrect application of legislation regarding the duration of additional leave (more often such an error lies in the incorrectly selected region when calculating the duration of the “northern” leave).

Situation 2. Incorrect calculation for several items

This situation often occurs in organizations where employees are located on site in different cities, and accounting is centralized. The reasons for incorrect calculation are:

• incorrect timesheet data (for example, overtime work, downtime due to the employer’s fault, work on a day off, etc. are not taken into account);

• undocumented recall of the employee from vacation (accordingly, the accounting data indicates that the vacation was used);

• lack of information about settlements with employees on business trips;

• incorrectly applied regional coefficient, surcharge;

• incorrect calculations of bonuses for the reporting period;

• incorrect calculation of salaries for the period of validity of the old one and the introduction of the new one, etc.

In such a situation, most often we are talking about an unintentional error, which the employer can easily identify on his own. It is these situations that in most cases employers prefer to resolve voluntarily, agreeing to additional payments to the employee.

Situation 3. The calculation is correct, but a certain amount was withheld from the employee

Most often, such situations arise with financially responsible employees .

According to Art. 247 of the Labor Code of the Russian Federation, the amount of damage caused, not exceeding the average monthly salary, is recovered from the guilty employee by order of the employer.

Such an order may be made no later than one month from the day the employer finally established the amount of damage caused by the employee. If the monthly period has expired or the amount of damage caused to be recovered from the employee exceeds his average monthly earnings (and the employee does not agree to voluntarily compensate for the damage), recovery can only be carried out by the court.

If the employer fails to comply with the established procedure for collecting damages, the employee has the right to appeal the employer’s actions in court (Part 3 of Article 247 of the Labor Code of the Russian Federation).

Thus, the employee cannot expect a peaceful settlement of such a situation, that is, the return of withheld funds without trial.

Deductions based on writs of execution may also be unlawful (“double collection”, repeated deductions, etc.) due to the lack of properly executed documents on business trip reports and the amounts received for reporting.

Let us remind you that deductions from an employee’s salary by virtue of Art. 137 of the Labor Code of the Russian Federation are carried out only in cases provided for by the Labor Code of the Russian Federation and other federal laws.

Extract from the Labor Code of the Russian Federation Article 137. Limitation of deductions from wages […] Deductions from an employee’s wages to repay his debt to the employer can be made: to reimburse an unpaid advance issued to the employee on account of wages; to repay an unspent and not returned timely advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases; to return amounts overpaid to the employee due to accounting errors, as well as amounts overpaid to the employee, if the body for the consideration of individual labor disputes recognizes the employee’s guilt in failure to comply with labor standards (part three of Article 155 of this Code) or simple work (part three of Article 157 of this Code) Code); upon dismissal of an employee before the end of the working year for which he has already received annual paid leave for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of part one of Article 77 or paragraphs 1, 2 or 4 of part one of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code. In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to decide to deduct from the employee’s salary no later than one month from the end of the period established for the return of the advance, repayment of debt or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of the withholding.

If the employee disputes these deductions, it is unlawful to make them from the salary (including when paying the final settlement).

Situation 4. The employee was given more than he was entitled to

Of course, the situation when the calculation turned out to be incorrect in favor of the employee is rare, but it still happens. An error in accruals is usually due to the omission of some information.

For example, there was no information in the HR department data that the employee used 14 days of vacation. Accordingly, upon dismissal, the employee was unreasonably accrued and paid compensation for these days.

The described situation, of course, does not violate the rights of the employee. No regulatory authority will punish the employer for such a mistake. However, he may never get the overpaid money back.

It should be taken into account that in accordance with Part 4 of Art. 137 of the Labor Code of the Russian Federation, wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except for the following cases:

• counting error;

• if the body for consideration of individual labor disputes found the employee guilty of failure to comply with labor standards (Part 3 of Article 155 of the Labor Code of the Russian Federation) or downtime (Part 3 of Article 157 of the Labor Code of the Russian Federation);

• if wages were overpaid to the employee due to his unlawful actions established by the court.

There is no definition of “counting error” in Russian legislation. Based on the position of the courts, only an arithmetic error (error in multiplication, subtraction, addition) is considered counting.

Thus, in relation to the described situation, it is unlikely that the error can be considered countable. Therefore, if the employee refuses to voluntarily return the amount of the overpayment, it will be impossible to recover it in court. No actions other than attempts to reach an agreement with the employee will help the employer restore the correctness of the calculations.

Deadlines for payment of wages upon dismissal

The employer is obliged to pay the employee in full on the day of his dismissal (Article 140 of the Labor Code of the Russian Federation). If there are disputed amounts, then the employer must pay not the amount disputed by the employee, but the balance after agreement.

Many employers are interested in when to pay paychecks if the dismissal date falls on a weekend. There are 2 options here:

1. If the dismissal occurs on a day off for the employee and the administration, then payroll is paid on the next working day.
2. If the date of dismissal is set on a day off from the administration, but the employee’s work shift, then the settlement must be paid on the date of dismissal. To do this, the employer needs to organize the exit of a personnel officer and an accountant.

Under what conditions can an employer refuse to issue a bonus?

After an employee's dismissal, payment of incentives is not required. The manager may refuse to pay compensation. In such a situation, the case may go to court, and the court will be on the side of the employer under the following conditions:

• a note in the employment contract about restrictions on the accrual of incentives to a dismissed employee (although some courts in this case take the employee’s side);
• documented disciplinary sanctions, fines, violations of labor discipline by workers during work, which relate to the calculation of compensation;
• the scope of work according to which bonuses are due has not been completed;
• the employee who went to court does not have documents confirming the fact of working in the organization;
• malicious violation of an employment contract by an employee.

What are the consequences of non-payment or delay of salary upon dismissal?

For non-payment or untimely payment of settlement and salary upon dismissal, the employer and officials face administrative and, in some cases, criminal penalties. Let's look at them in more detail.

Administrative liability under clause 6 and clause 7 of Article 5.27 of the Code of Administrative Offenses threatens for untimely or incomplete payment of wages and compensation, provided that there is no criminal offense. The size of the sanctions will be:

• from 10 to 20 thousand rubles. for officials;
• from 30 to 50 thousand rubles. for legal entities.
• from 50 to 100 thousand rubles. for legal entities for repeated violation.

The employer is obliged to pay compensation for late payment of wages.

Find out how to calculate compensation for late payment of wages and other amounts (including vacation pay) in ConsultantPlus. If you do not have access to the K+ system, get a trial online access for free.

Criminal liability is provided for in Art. 145.1 of the Criminal Code of the Russian Federation, if the employer does not pay wages for more than 2 months (from 100 to 500 thousand rubles), or does not pay the balance of wages for more than 3 months (up to 120 thousand rubles). This article also provides for deprivation of the right to hold certain positions or engage in certain activities for a period of up to 1 year.

WHAT AN EMPLOYER CAN DO

Regardless of what exact error occurred in the calculations when paying the employee the settlement upon dismissal, employers may react to this differently. Accordingly, take various actions to correct the situation. Or do nothing.

Option 1: Do nothing

Most employers adhere to this position, counting on the fact that the employee will not understand that he was not paid extra, will not dare to return to the former employer for clarification, will not dare to argue with him, and certainly will not dare to file a claim against the employer.

Of course, this is often what happens. The employee is indignant, but does not initiate a dispute if the amount of underpayment is not very large. However, if the amount of debt for the employee is significant, the likelihood of a dispute increases significantly.

In addition, in any case, the employer should not underestimate the following risks in this type of behavior:

1. A legal dispute may arise. If an employee goes to court and the fact of underpayment as a result of an incorrect calculation is established, when making a decision the court will demand (example 1):

• the amount of underpayment itself;

• interest for delay in payment of final payment upon dismissal;

• compensation for moral damage;

• all legal expenses incurred by the employee or collected by the court: representative services, postage, state duty (collected from the defendant employer), etc.

2. The employee can contact the State Tax Inspectorate. Even if the employee does not dare to openly argue with the employer in court, he still has the opportunity to complain about the offender to the regulatory body, that is, the State Labor Inspectorate.

Any inspection, as we know, can lead to the identification of not only those violations that the employee complained about, but also some others. For example, there may be violations in the timing of payment of wages to all employees, incorrect application of regional coefficients, etc. All this threatens with an order and administrative (and in some cases, criminal) liability.

Option 2. Pay the missing amount on your own initiative

The law does not prohibit this. However, the employer must take into account the following risks:

1. The employer still has financial liability. Issues of the employer's financial liability for delays in payment of wages and other payments due to the employee are regulated by Art. 236 Labor Code of the Russian Federation.

In accordance with this norm, if the employer violates the deadline for dismissal payments and (or) other payments due to the employee, the employer is obliged to pay them with interest (monetary compensation) in an amount not less than 1/150 of the Bank of Russia key rate in force at that time from not amounts paid on time for each day of delay starting from the next day after the due date for payment up to and including the day of actual settlement. In case of incomplete payment of wages and (or) other payments due to the employee on time, the amount of interest (monetary compensation) is calculated from the amounts actually not paid on time. The amount of monetary compensation paid to an employee may be increased by a collective agreement, local regulation or employment contract. The obligation to pay the specified monetary compensation arises regardless of the employer’s fault.

Thus, in addition to paying the missing amount, the employer must voluntarily accrue and pay the above monetary compensation (example 2).

Thus, an employer who made a mistake and decided to correct it on his own is obliged to pay the employee an additional amount in an increased amount - along with interest for the delay in payment.

2. Difficulties may arise with the payment procedure. Regardless of how quickly the employer identified errors in calculating amounts to an employee upon dismissal, the payment process may be complicated by the following:

• an employee may refuse to come to receive funds from the company's cash desk. Circumstances independent of the parties may arise that prevent this (for example, the employee has moved to another region);

• when transferring money to an employee’s card using details that were kept by the employer, it may turn out that the account is closed or, even worse, the bank no longer exists. That is, either the money will be returned, or it will be impossible to transfer it at all.

If, after dismissal, the employee stopped using the account (and card) to which the salary was transferred, but did not close it, the payment made by the employer will be considered proper, that is, this payment will terminate any obligations of the employer to the employee.

3. The employee has the right to demand compensation for moral damage. Of course, the percentage of those who take advantage of this right is small.

According to Art. 237 of the Labor Code of the Russian Federation, 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.

Despite the fact that the employer voluntarily reimbursed the amount underpaid as a result of an incorrect calculation upon dismissal, there was a violation of the employee’s rights. Accordingly, the fact of causing moral harm is obvious.

Another thing is that the courts award it in the minimum amount (usually 500–1000 rubles), taking advantage of the fact that the procedure for calculating compensation for moral damage has not been established.

Option 3. Enter into a dispute with the employee and insist on the correctness of the accrual

This course of action is chosen by at least half of employers who made errors in calculations during dismissal.

Basically, employers rely on the paucity of evidence from the employee and the wealth from the employer. In some cases, employers take liberties with the organization’s documents: they re-create time sheets, “lose” documents, challenge the competence of deputy directors to sign certain documents, etc.

In such situations, the likelihood of an employee losing in an unequal and unfair struggle with an unscrupulous employer increases in direct proportion to the degree of dishonesty of the employer.

Of course, there is a high risk that the court will identify false employer data. In this case, of course, the court will not force the employer to correct the timesheet or other document. He will simply treat it critically as evidence, without taking it into account when making a decision.

By adhering to this type of behavior, the employer, of course, will not incur more expenses and risks than with ordinary inaction and passively waiting for the court to make a decision to recover certain amounts in favor of the employee. Well, such employers obviously do not care about the deterioration of the organization’s status in society (including in front of future contractors).

Although for most counterparties who verify the future partner as a taxpayer and law-abiding business entity, his status as a defendant in the courts can undoubtedly have a negative impact on the decision to enter into civil relations with him and enter into transactions.

Option 4. Negotiate

This course of action is suitable for any situation. But most often it is used in cases where it is the employee, and not the employer, who is responsible. If the result of negotiations is positive, the employee voluntarily deposits the amount of the overpayment into the employer’s cash desk, and thus mutual settlements upon dismissal are finalized.

In general, you can come to a mutual agreement with an employee in any situation. Moreover, we recommend that you formalize this agreement in writing, recording what exactly the parties have reached agreement on (regarding the payment of what amounts, for example).

After performing certain actions (payment), the parties to the agreement will have no claims against each other. Accordingly, the risk of a legal dispute is practically reduced to zero.

However, it must be remembered that the terms of the agreement must not contradict the law. That is, for example, it cannot provide that “the employee refuses to receive compensation for delayed payment of wages,” but it can be established that “the employee does not require compensation for moral damage.” Unlike compensation for moral damage, the payment of which depends on the presentation of claims and the fact of violation of the employee’s rights, compensation for delayed payment is clearly established by law, which does not allow it to be excluded by contract.

Results

Upon dismissal, the employee is almost always paid the balance of his salary, in most cases - compensation for unused vacation, and in many cases - severance pay. The amounts available for calculation for each type of payment are transferred to the employee on the day of dismissal.

You can learn more about calculations upon dismissal in the following articles:

• “What payments are due to an employee upon dismissal?”;
• “How to correctly reflect payments upon dismissal in 6-NDFL?”

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Where to contact

The handling of a complaint or claim will vary depending on whether the employment is formal or informal. Because the requirements in these cases will be different.

In case of unofficial employment

Unofficial employment means that no employment contract was concluded. In Art. 67 of the Labor Code of the Russian Federation states that it is drawn up in writing, but is considered concluded from the moment the employee begins work on behalf of the manager. Therefore, an informal worker needs to go to court with several demands at once:

• on recognition of the employment contract as concluded;
• on the collection of unpaid wages;
• on recognizing the dismissal as illegal (if necessary);
• on recovery of earnings during forced absence (if required);
• about making an entry in the work book (when necessary).

There may be other requirements depending on the situation.

For official employment

The most important place to go if you haven’t paid your severance pay is the court. There you can collect:

• earnings and compensation for moral damage;
• reinstatement in case of illegal dismissal;
• recognize the employment contract as concluded;
• recover compensation for the period of forced absence.

Important! The statement of claim is filed with the district court at the location of the defendant. But you can also apply at the plaintiff’s place of residence (Article 29 of the Code of Civil Procedure of the Russian Federation).

If you are faced with a delay in payment due to dismissal at your own request, by agreement of the parties or on the initiative of the manager, you can also contact the prosecutor’s office or the labor inspectorate for the protection of labor rights.

Compensation for late payments to a dismissed employee

Monetary compensation is recovered in favor of the employee along with unpaid wages and other payments. As the Arbitration Court of the Volga-Vyatka District indicated in its ruling dated October 16, 2015 in case No. A82-2306/2015, compensation is paid to an individual employee for the performance of his labor duties and is a way of protecting his labor rights.

Art. 236 of the Labor Code of the Russian Federation establishes the procedure for calculating compensation:

Compensation = Unpaid amount × Number of days of delay × 1/150 of the Central Bank Key Rate.

The number of days of delay is the sum of days from the first day of delay to the day of settlement, inclusive.

According to Part 2 of Art. 236 of the Labor Code of the Russian Federation, increased compensation is allowed, the amount and procedure for establishing which are determined by a local act of the employing organization, a collective or labor agreement.

Types of required payments

Separation at the initiative of an employee is a reason for dismissal that does not require the largest financial obligations from the employer. The law imposes a requirement on management to make such forms of cash payments upon dismissal from work for the above reason as:

• wages that remained unpaid for the entire period of employment;
• if not all days of the annual paid leave required by law were used, compensation is due for them;
• any funds accrued but not paid to the employee;
• other payments, if they are provided for by the internal accounting policy of the organization and are fixed in the labor or collective agreement;
• unemployment benefits from the Employment Center if the employee registered there after dismissal and did not have time to find a new job.

How to fire a pensioner at your own request ?

Deadlines for final payment

As a rule, the departing employee receives the required funds on his last working day - in most cases it coincides with the day of dismissal specified in the application and order. But sometimes nuances are possible:

• if an employee goes on leave (paid or administrative) before dismissal, after which he will no longer return to work, then the calculation must be made before the vacation, that is, on the last day when the employee will be present at the workplace;
• if the employee does not show up for work on the day specified in the order, then in order to receive payments he will need to contact the accounting department with a request, and the next day he will receive all the funds due to him;
• if in a company salary and other payments are credited to the card through a bank, then the calculation must be made on the day of dismissal indicated in the order, regardless of whether the person being dismissed is at work or not.

IMPORTANT INFORMATION! If an employee’s absence from work on the last day is caused by a health condition, which is documented, then, firstly, the deadline for dismissal will be extended until the employee leaves sick leave, and secondly, compensation for temporary disability will be added to the mandatory payments.

Taxation of remuneration after dismissal of an employee

If the compensation was paid not as financial assistance, but as a bonus, it relates to the employee’s income. Then the accounting department is obliged to attribute these funds to the wage fund and make payments for personal income tax deductions, contributions to the Pension Fund, Social Insurance Fund, and Compulsory Medical Insurance Fund. Premiums are subject to the following charges:

• Personal income tax - 13% if the employee is a resident of the Russian Federation; if compensation is paid to a foreign citizen, then the rate will be 30%;
• PFR-22%;
• Social Insurance Fund - 2.9%;
• Compulsory medical insurance - 5.1%.