What is the compensation for delayed payments upon dismissal and other nuances?

Late payment upon dismissal: what is it?

Late payment in labor relations is understood as delay in payments of amounts due to employees (salaries, vacation pay, etc.). When dismissing a worker, payments must be made by one or both parties:

• employer in accordance with Art. 140 of the Labor Code of the Russian Federation pays the employee the unpaid part of the salary, compensation for unused vacation days, etc. To the manager dismissed by decision of the owner of the organization’s property, when the termination of the employment contract is not related to the actions of the head of the organization, under Art. 279 of the Labor Code of the Russian Federation, special compensation is paid;
• the employee compensates for real damage caused to the employer, but the amount of such compensation is limited to the average monthly earnings of the dismissed person (Article 241 of the Labor Code of the Russian Federation). If the employee is a financially responsible person, then for him the limitation on the amount of compensation is removed, and he compensates for all direct actual damage. The list of positions for which it is possible to conclude an agreement on full financial liability was approved by Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 No. 85.

According to Art. 140 of the Labor Code of the Russian Federation, the calculation is made on the last day of work, coinciding with the day of dismissal, and if there is a discrepancy, no later than the next day after the employee requests the calculation.

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The main type of late payments made by the employer is delayed wages. After a salary delay of 15 days or more, the employee, as specified in Part 2 of Art. 142 of the Labor Code of the Russian Federation, has the right to suspend work at any day. However, when settlement, including payment of the remaining salary, is necessary due to the dismissal of an employee, the suspension does not make sense. The Labor Code, the Code of Administrative Offenses and the Russian Federation provide for other ways to encourage the employer to make timely payments, namely material, administrative and criminal liability for delayed payments.

Required payments and compensations

If a subordinate quits of his own free will , then he is not entitled to such payments that will compensate for the loss of his job or will guarantee financial stability while the worker looks for another job.

Read our article on how to write a statement of your own free will.

Upon dismissal, an employee must be given severance pay, in accordance with the law (Article 178 of the Labor Code of the Russian Federation) . This payment is made taking into account the actual time worked, but not yet paid, as well as the vacation due to the employee (whether spent or not). Therefore, it is necessary to make two options for cash payments:

1. An employee's salary for the time he performed his job duties. A full salary is provided to an employee if he worked for a full month . If the employee did not work until the end of the month, then the payment to him is calculated using the formula: official salary/sum of working days * actual days worked.
2. Cash in the form of compensation for the vacation that the employee did not have time to spend. This accrual is carried out taking into account the employee’s average daily earnings for the previous year relative to the day of dismissal. This payment amount must be multiplied by the days of rest that the worker did not spend.

It is necessary to take into account some details when calculating payments for unused vacation :

• If a citizen has unused vacations for more than one year, then in any case he will receive cash payments only for the previous two years and no more.
• An employee can count on full payments for vacation if he has worked for eleven months out of the period for which the calculation is made.
• If a worker has managed to take all of his required vacations, then he is not entitled to these payments. You need to know that if a worker used his last vacation in advance, and if he did not have time to work it, then the amount for these days off may be deducted from his final payments (Article 137 of the Labor Code of the Russian Federation).
• In addition to the payments due to an employee by law, if he leaves of his own free will, he is required to accrue remuneration in accordance with local regulations, as well as other additional payments, which include the 13th salary. Such payments are made to the employee if they are due to him in accordance with certain documents.
• Civil servants are entitled to additional pay for length of service, as well as for performing certain duties under specific circumstances. Accruals are calculated in accordance with legal regulations. Typically, the amount of cash accruals depends on the time the employee works.

It must be remembered that wages, as well as payments for unused vacations, are subject to taxation, which amounts to thirteen percent of the accrued payment.

Financial liability of the employer for delay in payment

In accordance with Art. 236 of the Labor Code of the Russian Federation, the employer’s financial liability lies in the obligation imposed on him by the court to compensate the resigning person for the following amounts:

1. Debt on mandatory payments, including, by virtue of Art. 236 of the Labor Code of the Russian Federation, include:
   • salary;

   payments upon dismissal (severance pay, compensation upon dismissal due to reduction, etc.);

2. vacation pay (including compensation for unused vacation), etc.

Interesting: as stated in paragraph 55 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 (hereinafter referred to as the Supreme Court Resolution No. 2), the employee has the right to indexation of salary amounts, since during the delay it gradually depreciates due to inflation.

3. Cash compensation (interest on late payments).
   According to paragraph 55 of the Supreme Court Resolution No. 2, the claim for the recovery of the amount of payments and compensation is satisfied by the court, regardless of whether the employer is at fault for the delay.

In practice, this looks, for example, like this: in the case when the Central Bank revokes the license of a bank serving an employer under Part 9 of Art. 20 of the Law “On Banks and Banking Activities” dated December 2, 1990 No. 395-1-FZ, the bank no longer has the right to transfer money based on customer payment orders. If the employer did not react on time and did not ensure that employees received their salaries in another way, then a delay will occur. Formally, the employer is not to blame for the delay in payments, but nevertheless he bears financial responsibility to his employees.

Fired and not paid wages - procedure

If an employee has not received a salary upon dismissal, then he has the right to first file a pre-trial claim in the form of a statement and send it to the head of the organization. It must be taken into account that this can be done if the employee was registered under an employment contract.

If it was not possible to get the required salary
within ten days , then the next step should be to file a lawsuit in court.
In court it will be necessary to provide proof of the working relationship. Witness evidence, as well as important documents of the organization on which the employee’s signature will appear, can help with this. Thus, the worker can obtain all legal payments, as well as interest for the period of delay .

To win a case, you must have the necessary knowledge of the Labor Code, so it is recommended to use the services of a lawyer.

If, when dismissing an employee, the manager refuses to pay wages, then contacting government agencies will help the worker achieve justice.

If a worker wants to complete the matter and defend his rights, then he needs to submit a written appeal. This document must be drawn up with the necessary information that will help assess the situation.

The surest solution to this problem is to contact the prosecutor's office . To do this, you will need to write an application. This organization will come to help with non-payment of wages. The powers of the prosecutor's office are as follows:

• handling citizen complaints;
• providing information on workers' rights;
• criminal proceedings.

You can find a sample application to the prosecutor's office here.

The employee also has the right to go to court . For this appeal, you will have to not only correctly draw up the requirements, but also provide clear arguments.

In order to go to court, you need to prepare a list of necessary documents:

1. a correctly drawn up claim according to a specific template;
2. a copy of the employment contract, as well as the order for admission to this position;
3. a document stating that wages were not issued.

Download a sample statement of claim here for free.

If it is difficult for an organization to obtain the required package of documents, you can turn to the labor inspectorate or the prosecutor’s office for help.

It is allowed to resolve controversial issues in court within three months , but no more.

Compensation for late payments to a dismissed employee

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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.

How to calculate compensation correctly?

The standard method for calculating compensation is based on the provisions of Art. 236 Labor Code of the Russian Federation. Formula for calculation:

K=NZ*1/150*StR*P , where

• K is the amount of compensation;
• NZ - the amount of unpaid earnings;
• StR - key rate of the Central Bank;
• P - period of delay.

The case of delay

According to the order, citizen Smirnov’s last working day before dismissal is November 14, 2021. He was at the workplace, but the payment was 20 thousand rubles. not received. Payments to him were made in full on November 21, 2021.

The period of delay is calculated from the day following the designated payment date until the date of actual repayment of the debt to the employee, inclusive. Smirnov's delay was 7 days. The key rate of the Central Bank at this time is 6.5%.

Compensation calculation:

K = 20,000 * 1/150 * 6.5 / 100 * 7 = 60.67 rubles.

That is, 60.67 rubles must be added to the amount of earnings of the dismissed Smirnov.

If the percentage of compensation is indicated in the local acts of the enterprise, the calculation is carried out according to the formula:

K=NZ*D*P , where

• K is the amount of compensation;
• NZ - unpaid wages;
• D - percentage of compensation in accordance with the regulations on remuneration or other act;
• P - period of delay.

The percentage of compensation specified by local regulations of the employer cannot be lower than 1/150 of the rate of the Central Bank of the Russian Federation.

The case with the coefficient specified in the contract

The day of dismissal of citizen Smirnov is November 14, 2021, payment in the amount of 20 thousand rubles. he received it only on November 21, 2019. At the same time, the wage regulations stipulate a compensation percentage of 0.08%. The delay period is 7 days.

Compensation calculation:

K = 20,000 * 0.08 / 100 * 7 = 112 rubles.

That is, Smirnov, when calculating the amount of earnings, will receive an additional 112 rubles.

Fine or warning for late payment of wages

Administrative liability for late payment is provided for in Part 6 of Art. 5.27 Code of Administrative Offenses of the Russian Federation. The condition for the occurrence of such liability is also the failure to pay in whole or in part the payments due to the worker within the framework of the employment relationship.

Unlike material liability, the purpose of administrative liability is primarily to protect law and order, and the main function is punitive. Therefore, the punishment for failure to pay a resigning employee is not compensation to the employee, but a warning or a fine in favor of the state. Disqualification also applies to an official recruited again. A mandatory condition for bringing to justice under Art. 2.1 of the Code of Administrative Offenses of the Russian Federation is the employer’s fault for delay.

In accordance with Art. 3.4 of the Code of Administrative Offences, a warning is issued in writing as a punishment - this is an official censure of the perpetrator.

A more significant punishment is a fine. Its limits, according to Parts 6, 7 of Art. 5.27 Code of Administrative Offenses of the Russian Federation:

With regard to administrative liability, the range of offenders has been expanded: as stated in paragraph 15 of the resolution of the plenum of the Supreme Court of the Russian Federation dated March 24, 2005 No. 5, it is permissible to bring both an organization and its officials under the same rule simultaneously. Therefore, in addition to the organization itself, the official responsible for the delay in payment can also be held accountable.

What are the consequences of such a violation for the employer?

For non-payment of wages upon dismissal, the employer will be held liable under the criminal and administrative legislation of our country. It is necessary for the employee himself to initiate proceedings and an inspection of the enterprise by filing a complaint against the actions of his management to the relevant departments.

Administrative penalty

As a rule, an employer who fails to pay wages on time is subject to administrative liability, which includes penalties in the form of a monetary penalty . The manager or owner of an enterprise of any type will be fined up to 100 thousand rubles. The final fine depends on the type of violation and its scale.

Administrative liability is provided for in Article 5.27 of the Code of Administrative Offenses of the Russian Federation for violations in the field of labor activity. A large enterprise or LLC faces a fine of up to 50 thousand rubles for non-payment of wages. If a violation is detected again, the amount of penalties will increase to one hundred thousand rubles. For individual entrepreneurs, the fine is up to 5 thousand rubles (up to 30 thousand rubles if brought to justice again).

You can read more about the fine for non-payment of wages in a special article prepared by our editors.

The employer, according to Article 3.4 of the Code of Administrative Offenses of the Russian Federation, can get off with a written warning if the delay in wages was not his fault. By the way, the management of the enterprise will receive a fine for its other violations. For example, for non-payment of taxes when refusing official employment to subordinates.

What will happen according to the Criminal Code of the Russian Federation?

More serious measures against an unscrupulous employer are provided for in the Criminal Code of our country. According to Article 145.1 of the Criminal Code of the Russian Federation, non-payment of wages threatens the manager with:

• Deprivation of the right to carry out activities;
• A large fine of up to 500 thousand rubles;
• Arrest for up to 3 years (in some cases the period is five years);
• Correctional work.

A special material has been prepared on the topic of criminal liability for non-payment of wages - we recommend that you read it.

The maximum period of arrest (5 years) is used in practice as a punishment for an employer extremely rarely. The basis for such a harsh court decision is the scale of the defendant’s actions, as well as the serious damage suffered by employees due to lack of wages.

Criminal prosecution under Article 145.1 of the Criminal Code of the Russian Federation arises only if the delay or non-payment of wages upon dismissal of an employee is associated with fraudulent or selfish actions of the employer aimed at obtaining personal gain.

Under the above article , a criminal case will be initiated if the delay in salary payment is two months . In case of partial non-payment of earnings, liability begins after three months. To punish the employer, it is necessary to submit an appeal to law enforcement agencies, which will initiate further inspection and proceedings.

Criminal liability for non-payment of payment

Art. 145.1 of the Criminal Code of the Russian Federation established non-payment of wages as a criminal offense. The integral elements of such a crime are:

• the fault of the head (other official) of the employing organization for the delay;
• personal or selfish interest. According to paragraph 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated October 16, 2009 No. 19, personal interest includes the desire of an official to obtain non-property benefits, the motivation for which is, for example: the desire to hide incompetence;
• careerism;
• desire to receive a return favor;
• nepotism;
• desire to receive support on a specific issue.

Selfish interest is defined as the desire to obtain a property benefit for oneself or another person by committing an unlawful act.

Only individuals are held criminally liable. According to Art. 145.1 of the Criminal Code of the Russian Federation may be punished:

• employer - an individual (for example, a notary, individual entrepreneur, etc.);
• head of an organization or its structural unit;
• chief accountant (in collaboration with the manager).

What are the consequences of delaying payment to an employee on the day of dismissal?

The employer has the right to voluntarily pay the employee (for example, upon his written request) the amounts due upon dismissal, without bringing the labor dispute to court and without incurring additional monetary (in particular, state duty) and time costs.

The special government body that has the right to force the employer to fulfill his obligation to make the final payment in a timely manner is the Department of State Labor Inspection of the Ministry of Labor and Social Protection of the Republic of Belarus. The department has the right not only to issue binding orders (in this case, to force the employer to fulfill an obligation without bringing the matter to court or after its decision is made), but also to administratively hold both the employer and its officials accountable.