Fired - fired, but the salary was not paid. Can this be fixed?

The legislative framework

The norms of legal relations between employers of various forms of ownership of enterprises, organizations, individual entrepreneurs and hired workers are regulated by:

• labor legislation;
• other federal laws relating to labor;
• government regulations;
• presidential decrees;
• interdepartmental agreements;
• collective agreement;
• local legal acts of internal effect.

Duties and responsibilities of the employer

When hiring employees, the employer must formally enter into an employment contract.

In addition to the duties and responsibilities of the parties, it is necessary to document:

• the amount of earnings (based on the current regulations on remuneration);
• specific dates of monthly payments (at least twice, every 15 days worked).

Regardless of how much time remains before the planned salary payment day for the enterprise, settlements are made with the dismissed worker by directly terminating the employment relationship (Article 140 of the Labor Code of the Russian Federation).

In cases provided for by law, upon dismissal, severance pay is paid in addition to the amounts due.

Untimely settlement with a dismissed employee is fraught for the employer not only with additional costs for paying penalties for each day of delay in payments (at least 1/150 of the Central Bank rate), but also with liability.

conclusions

The employer is obliged to pay dismissed employees in full on their last working day. Violation of this rule leads to fines, additional compensation, and sometimes to criminal liability in the form of a real prison term.

An employee whose rights regarding payment of severance pay have been violated may appeal to the State Labor Inspectorate, the Prosecutor's Office or the court. These authorities will help restore justice and oblige the offender to repay the amount of debt to the former employee.

What can an employee expect?

The calculations include:

• wages for the period worked after the last payment;
• compensation payments and additional payments for work in special, harmful working conditions in proportion to the actual time worked;
• the appropriate amount of incentive and incentive bonuses paid in accordance with the current regulations on the remuneration system;
• compensation for unused days of paid leave.

From the amounts accrued during the calculation, the following may be withheld:

• vacation pay paid in advance;
• damage caused by the guilty actions of the employee, if an additional liability agreement has been concluded with him (the amount cannot exceed his average monthly earnings, Article 241 of the Labor Code of the Russian Federation).

A dismissed employee is paid severance pay if:

• he was subject to reduction in staff or numbers;
• the enterprise ceased its activities, was liquidated by decision of the owner, or declared bankrupt by a court decision;
• he was called up for military service;
• according to a medical report, he cannot continue to work under the same conditions, refused to be transferred to light work, or the employer does not have suitable vacancies;
• termination of employment relations is due to other reasons provided for in Art. 178 Labor Code of the Russian Federation.

Is it legal to withhold the cost of workwear upon dismissal of an employee?

The boss provides his employees with special clothing and sometimes equipment. Upon dismissal, all property of the organization must be returned

.
Thus, if you did not return the workwear issued to you or damaged it, then the boss has the right to demand its return or financial compensation from you through the court, in accordance with Articles 212, 221 of the Labor Code of the Russian Federation
. Sometimes the cost of workwear is simply deducted by management from wages. To avoid such problems, it is very important to return all items provided to you back to the company on time, on the day of your official departure.

Where to complain in case of non-payment

You can protect your interests and violated rights by any non-prohibited means. The procedure depends on the choice of method to ensure that the employer repays the amounts due.

We'll tell you what you can do if you haven't paid not only your estimated wages, but also your wages (while you continue to work).

Self-defense and powers of commissions operating at the employer (CTS)

You can try to resolve the conflict on the spot by submitting a written complaint to the employer. The application must be submitted in person or sent by registered mail with notification of its delivery to the addressee.

It is advisable to leave confirmation of your request.

Prepare 2 copies of the application with the requirement to pay the amount of the debt by the specified date with the accrued penalty for late payment.

When contacting in person, the secretary registers incoming correspondence by marking your copy with the date of receipt and registration number.

If the manager ignores legal requirements, a commission created from representatives of the administration and the workforce to resolve disputes can provide assistance.

Currently, CTS has lost its significance and rarely operates in organizations. You can initiate its creation by contacting trade unions designed to defend the interests of workers.

If within 3 days the employer does not voluntarily comply with the decision made by the commission to pay the amounts due, the interested person receives a certificate.

Since the CTS certificate is equivalent to a writ of execution, it is used by bailiffs to force the collection of settlement and accrued penalties for late payments.

Contacting the territorial labor inspectorate

The norms of Art. 2 Federal Law No. 59 (latest current version with amendments and additions dated December 27, 2018), enshrines the right of citizens to contact government bodies authorized to make socially significant decisions.

The fulfillment by employers of guaranteed workers' rights is controlled by the state by the federal labor inspectorate. The supervisory authority performs its functions locally through territorial inspections.

Filing a complaint about non-payment of settlement pay upon dismissal:

• taken personally to the territorial body of Rostrud at the place of registration of the employer acting as a legal entity, or the actual location of the entrepreneur;
• sent by registered mail (it can be simple, but it will not be known when it was delivered and whether it even reached the addressee);
• sent via the Internet by filling out a specially designated form in the “online inspection” section on the official website of Rostrud.

The inspectorate is competent to conduct an unscheduled inspection of the employer by requesting the necessary documents or visiting the place of business. Upon confirmation of the specified facts of non-payment of wages:

• guilty officials will be held accountable;
• the employer will be issued an order setting a deadline for eliminating violations.

Sample:

Filing a complaint to the prosecutor's office

The prosecutor's office is another government body that can help protect interests and hold the employer accountable.

Having a wider range of powers, the prosecutor's office has the right to monitor the implementation of any laws in force in the country.

Upon application for non-payment upon dismissal of all or part of the funds due:

• a prosecutor's investigation is carried out;
• documents can be forwarded to the territorial inspection that controls the employer to take effective measures to eliminate violations.

An application, similar to an application to the inspectorate, is written arbitrarily. You just need to follow the basic rules of business writing.

Unacceptable:

• use of obscene language;
• insult, threats against officials (or their relatives).

Sample:

Going to court

Any individual conflicts are resolved in court. To file a claim, it is not necessary to present evidence of pre-trial settlement of the dispute or contact the supervisory authorities.

The application is drawn up taking into account the requirements for content and form. As a rule, 3 copies are prepared:

• for court;
• an employer who is a defendant in legal proceedings;
• one copy remains with the plaintiff.

In contrast to appealing violations of legal rights to supervisory authorities, where there is no need to provide evidence of these facts, since they will be verified by a labor inspector or prosecutor when drawing up a statement of claim:

• it is necessary to indicate the rules of law violated by the employer;
• justify the requirements presented;
• attach documents confirming the legal relationship with the employer (their termination) and certificates of arrears in payments.

Sample:

What to do if you didn’t receive your black wages on the last working day?

Some employers, wanting to reduce their tax costs, divide wages into official and unofficial components.

Moreover, the employee may not be accepted into the organization’s staff at all, an employment contract is not concluded with him, and the entire salary is paid in cash.

The so-called black salary is part of the salary that is paid unofficially, does not go through official documents, and is not subject to insurance premiums and income tax.

If the employer delays the payment of the official payment upon termination of the employment contract, the employee can easily defend his rights. If some of the payments are unofficial, then it will be more difficult to prove their existence.

Of course, it is convenient for the employer to pay a black salary, since 30% of insurance premiums must be paid from it. This method of remuneration is also convenient for the employee, since 13% of personal income tax is not withheld from him.

However, if problems arise in the form of non-payment of wages or settlements upon dismissal, such informal and mutually beneficial at first glance calculations turn into dire consequences.

However, if there is a case of delay, then the employee can act in the same manner as when receiving a white official salary. He has the right:

• contact the GIT;
• submit an application to the prosecutor's office;
• file a claim in court.

However, the decision of these bodies is difficult to predict. If sufficient evidence is collected confirming the fact of employment and the accrual of the full amount of payments in favor of the victim, then the case may end in a positive outcome.

However, in practice, most often no official documents confirming the fact of employment and accruals are issued.

If the fact of working in a specific organization can still be proven, for example, with the help of witness testimony, then it is very problematic to prove exactly what amount should be accrued to the employee. Especially if the salary consists of black and white.

The legislation does not regulate the process of payment or delay of black wages, so it is almost impossible to recover this amount in case of non-payment.

What can serve as evidence:

• documents confirming the accrual or receipt of money (pay slips, cash orders, statements);
• testimony of witnesses, work colleagues (if, of course, they are ready to testify against their employer);
• audio, video and photographic recordings;
• average statistical data on salary levels for specific positions;
• job advertisement indicating the salary.

It is almost impossible to prove the existence of a debt on black wages to the labor inspectorate or the prosecutor's office. Only the court can help in this matter, but not always. Each case is considered individually, evidence is taken into account in its entirety and interrelation.

Limitation of actions

With regard to the employer's arrears of wages and other amounts due during employment, claims can be filed in court within 3 years from the date established for payment.

Since we are talking about non-payment of settlement, you need to focus on the date of dismissal, even if some part of the amount due was paid.

Despite the fact that the time frame for contacting the supervisory authorities is not limited by legislative acts, it is accepted by default that the application is considered on its merits if submitted during the period when the conflict can be resolved through the court.

An exception for the consideration of individual disputes by labor dispute commissions operating within organizations. The time limit for resolving CCC disputes is much shorter.

The application can be submitted within 3 months from the day it became known about violations of legal rights by the employer, if there is confirmation that it was not possible to resolve the conflict peacefully.

Evidence base

The advantages of contacting supervisory authorities (prosecutor's office or territorial labor inspectorate) with a request to provide assistance in protecting labor rights and receiving the required settlement payments include:

• it is not necessary to present any documents confirming the accuracy of the specified facts of non-payment of wages and other amounts upon dismissal, since they will request documents for verification from the employer on their own;
• there is no need for the personal presence of the interested person when carrying out control activities;
• within a month from the date of application, the applicant will receive a substantiated response.

If conflicts are resolved through court, the plaintiff must provide all evidence of the validity of his claims.

The following can be submitted as documents confirming violation of guaranteed rights:

• a copy of the contract with the employer or work record book;
• copies of written orders, from which it is clear that the person was hired and the employment relationship was terminated (or extracts from orders);
• a certificate from the accounting department about the amount of official salary (or tariff rate):
• a certificate of the amount of debt at the time of filing the claim.

If the employer does not issue orders and certificates at the request of the dismissed employee, when filing a claim, you must apply for the documents necessary to consider the dispute.

What answer should I expect?

Filing a complaint against an employer just seems like a complicated process. But in reality, writing a complaint is simple. You can even not personally contact any departments, but send documents electronically. Most often, just one pre-trial letter to the former management is enough for the employer to pay the arrears of wages.

If, nevertheless, a complaint was filed with the prosecutor's office or labor inspectorate, then its employees will conduct an inspection of the enterprise for the presence of the stated violations. If they are identified, the employer will be issued a warning and a requirement to eliminate violations .

Let's consider an example: after his dismissal, Nikolai did not receive the final payment from his employer for the last three months. They filed a complaint with management, but there was no response. But the letter to the inspectorate, along with the attached employment contract and a bank statement about the payment of wages, brought results: after the inspection, the employer invited Nikolai and fully repaid the salary debt.

If contacting the labor inspectorate or the prosecutor’s office does not help, then you should go to court. A claim can also be filed if a former employee demands that the employer pay penalties and compensation. A judicial resolution of the issue of unpaid wages is the most effective way, since the employer will not be able to ignore the court decision.

You can also learn about the specifics of filing an application to the court for non-payment of wages after dismissal by reading here.

A bill on the collection of wages by the labor inspectorate without court

Currently, the only way to obtain payment of earned money is through the courts. But the consideration of a claim can last for months, and even longer if the employer has a strong legal service. As practice shows, sometimes judicial red tape stretches for up to a year. The transfer of the writ of execution to the bailiffs also does not happen instantly. Thus, the dismissed employee is left without a livelihood and, in addition, is forced to bear the costs of paying for legal services.

To alleviate this situation, the Government has prepared changes that will expand the powers of supervisory authorities. On November 14, 2019, a bill amending the Federal Law “on enforcement proceedings” was adopted in the first reading.

According to the innovation, labor inspectorates themselves, without the participation of the court, will be able to forcibly recover the amounts due from the employer in favor of the employee. If the employer has not complied with the order to correct violations on time, the inspector adopts a corresponding resolution and transfers it to the bailiff service. Such a simplified collection procedure will protect the rights of employees and significantly reduce the time frame for debt payment.

Thus, the dismissed employee will be able to decide for himself how to pursue unpaid wages - through the court or the labor inspectorate.
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