Labor legislation provides for the right of employees to rest, incl. to provide them with days off and non-working holidays. And if the holiday turned out to be a working day (paragraph 5 of article 2, paragraph 6 of part 1 of article 21 of the Labor Code of the Russian Federation)? We will tell you how to pay for such time in our consultation.
Payment on the eve of a non-working holiday
The list of non-working holidays is given in Art. 112 of the Labor Code of the Russian Federation. The duration of the working day or shift immediately preceding a non-working holiday is reduced by 1 hour (part 1 of article 95 of the Labor Code of the Russian Federation). In this case, payment for this day is made as for a fully worked day.
In case of continuous operating organization and on certain types work, when it is impossible to reduce the duration of work (shift) on the holiday day, processing must be compensated. For this, the employee is provided with additional rest time or, with the consent of the employee, he is paid according to the norms that are established for (part 2 of article 95 of the Labor Code of the Russian Federation).
When is paid rest on a non-working holiday
For employees receiving a salary, the presence of non-working holidays in the month does not reduce the amount of salary (part 4 of article 112 of the Labor Code of the Russian Federation).
Another thing is non-salary workers (for example, pieceworkers). After all, a large number of non-working holidays, for example, in new year holidays can lead to the fact that monthly earnings will be significantly lower than usual. In such cases, the Labor Code provides that such employees for non-working holidays in which they were not involved in work, additional remuneration is paid. Its size and payment procedure are determined by a collective or labor agreement, a local regulatory act of the organization (part 3 of article 112 of the Labor Code of the Russian Federation).
How to pay for "holiday" work
For work on a non-working holiday, payment is due at least twice the amount (part 1 of article 153 of the Labor Code of the Russian Federation):
- pieceworkers - at least at double piecework rates;
- employees whose work is paid at daily and hourly tariff rates - in the amount of at least double the daily or hourly tariff rate;
- employees receiving a salary - in the amount of at least a single daily or hourly rate (part of the salary for a day or hour of work) in excess of the salary, if work on a non-working holiday was carried out within the monthly norm of working time, and in an amount of at least double daily or hourly rates (parts of the salary for a day or hour of work) in excess of the salary, if the work was performed in excess of the monthly norm of working time.
Specific amounts of payment for work on a non-working holiday may be established by a local regulatory act of the organization, a collective or labor agreement.
Instead of increased pay, rest
For work on a non-working holiday, at the request of the employee, payment can be made in a single amount, however, the employee must be given another day of rest, which is no longer payable (part 3 of article 153 of the Labor Code of the Russian Federation).
Features of payment for shift work
If the employee works in accordance with the shift schedule and his shift coincided with a non-working holiday, such a day is also subject to payment in an increased amount. The difference in payment for processing with a shift work schedule is that if such work was carried out within the limits of the employee’s working time for the corresponding period, it will not be possible to replace this day with the consent of the employee with a single payment and a day of rest (Recommendations of the Federal Service for Labor and Employment dated 02.06. 2014).
But if such work is done in excess of the norm of working time, the employee decides for himself - double pay or “single pay + rest”.
23.05.2018
The scope of activities of some institutions has features in which it is possible to ensure the smooth operation of the enterprise only by establishing a shift schedule.
The use of this mode will increase the efficiency of the operation of technical equipment and ensure the smooth operation of the company.
How should the salary of the staff be calculated?
Definition
The shift work schedule is implementation professional activity in 2 or more shifts. The definition of this concept is present in article 103 of the Labor Code of the Russian Federation.
In accordance with the information specified in the regulatory act, this technology is used in cases where the general working hours exceed the norm.
Peculiarities labor process and calculation technology wages must be reflected in the collective and labor agreement.
A shift schedule can be of several types:
- day and night shifts. After working at night, the employee is given a day to rest and 1 more day off;
- a shift consisting of 2 working days (two in two). The duration of each of them is 11 hours. Night work is not provided;
- three days later. During the day, the employee performs his duties. At the end of 24 working hours, he is given a day off, which lasts 3 days.
The first type is most often used in organizations whose work does not imply production shutdowns. These include various factories, plants and other enterprises of this kind.
The second type of shift schedule is used in cases where there is no need to work at night. At the same time, the absence of a break in work shifts must be ensured.
Dispatchers, salespeople, administrators, etc. often work according to this schedule. Employees work mostly throughout the day security companies and the Ministry of Emergency Situations.
How to calculate salary?
When calculating wages for employees working in shifts, rules are applied that are unusual for a 5-day working week.
AT this case Saturday and Sunday can be considered both days off and working days.
With a shift methodology, the total number of hours worked may be greater than the maximum allowable value.
In this situation, planned processing is formed, for which you need to calculate a salary in an increased amount.
It is important to note that when using number of hours worked overtime should not exceed 120. This rule is regulated by article 120 of the Labor Code of the Russian Federation.
To avoid misunderstandings and irregularities in payroll calculations at the end of the accounting period established by the company You need to check the following indicators:
- the number of hours actually worked in accordance with the work schedule;
- the number of working hours in the accounting period.
If, as a result of calculations, the first indicator is higher than the second, the employer is required to recalculate during which the employee must be paid overtime.
Example when working in shifts two through two
You can finally understand the technology of payroll with a shift schedule by considering an example.
Initial data:
The dispatcher of the company "Quadra - Power Generation" works according to a shift schedule - 2/2 (two through two). There are 11 working hours in each working day. hourly rate— 250 r. The month is used as the accounting period for payroll calculation.
According to the graph, the employee worked 165 hours during the month.
Calculation:
Salary at the tariff rate \u003d 165 x 150 \u003d 24000.
At the same time, there was processing, the duration of which was 5 hours. To calculate the number of working days in a month, do the following:
Shifts worked = 165 / 11 = 15.
The resulting figure is less than 2, therefore, overtime is paid at 1.5 times.
Processing fee = 250 x 5 x (1.5 - 1) = 625.
The final amount of wages \u003d 24000 + 625 \u003d 24625 rubles.
How are weekends and holidays paid?
If the shift of an employee falls on a holiday non-working day, payment for such time is carried out by using the procedure established by the current legislation of the Russian Federation.
Wage rate must be increased by at least 2 times.
This norm is regulated by Article 112 of the Labor Code of the Russian Federation.
If an employee works on Saturday or Sunday in accordance with the shift schedule, payroll for these days is done in a standard way.
The only exceptions are holidays established by the state.
conclusions
The technology for applying a shift work schedule is reflected in the Labor Legislation of the Russian Federation. A feature of this technique is the high probability of reworking.
All of them must be paid accordingly. At the same time, the value of the annual overtime work should not exceed a certain indicator.
This working time device technology is used in situations where it is necessary to ensure the smooth operation of the enterprise. Practically employees of all factories and other organizations of a similar nature work in shifts.
The procedure for calculating wages when working in shifts depends on the established
The Labor Code of the Russian Federation obliges each organization and each enterprise to keep records of the time actually worked by employees. At the same time, the code sets limits on the length of working hours, which in the usual mode are 40 hours a week (eight working hours daily, five days a week). For a number of categories defined by law, the standard of working time is determined in the amount of 24, 35 or 36 hours.
Accounting for the time that was worked out by employees can be performed in several ways. If the daily schedule assumes an equal number of hours, fixing is carried out by day. If the number of working hours during the week is uneven, but the total working time is the same every week, weekly accounting is used.
With shift work, it is quite difficult to keep track of hours worked both by day and by week.
Most often, the summarized method of accounting is used, in which a schedule of work of personnel by shifts is drawn up.
If the schedule is drawn up incorrectly or unforeseen events occur (force majeure, illness of employees), as a result of the planned shifts, hours of work appear that go beyond the norms established by law. Such overtime hours require special design and additional monetary compensation employee. The calculation of the amount of additional payments in this case depends on the remuneration system in force in the organization and on the method of fixing hours worked.
How is processing time calculated with a shift schedule
Wages in shift work can be calculated on the basis of the approved salary or using hourly tariff rates. At salary system the employee receives the same salary every month, with the exception of shortcomings or overtime (in this case, to pay the salary, the hourly rate is first calculated, and after that - the total amount of payment for the month). When using hourly rates to calculate the amount of wages, the number of hours worked is multiplied by the established rate.
To calculate the surcharge for hours worked in shift mode, first of all, you should calculate the number of hours worked in excess of the norm. With weekly accounting, this is quite easy to do: you need to know the maximum standard duration work week for certain employee established at the legislative level. All "extra" hours worked will be considered overtime.
When using summarized accounting to determine the duration of processing, the time worked by the employee should be calculated cumulatively for the entire accounting period.
This is of fundamental importance, since hours worked in excess of the norm are considered overtime only at the end of the reporting period.
Processing payment procedure
Article 152 of the Labor Code of the Russian Federation says that processing is paid in the following order:
- first two hours labor activity- in 1.5 size;
- the rest of the processed time is doubled.
These coefficients are the minimum indicators fixed by law. At their discretion, the heads of organizations may use higher figures.
With summary accounting, the determination of the amount of the surcharge is performed at the end of each reporting period. For example, if the reporting period is a quarter at the end of which an employee has four “extra” hours, the first two hours are paid at one and a half times, the second two at double the amount.
For an accurate calculation, you need to know the hourly tariff rate certain specialist. If wages are already calculated at this rate, it is very easy to determine the amount of the surcharge.
There are several ways to calculate the salary rate:
- by dividing the established salary by the standard number of hours in one year;
- by dividing the established salary by the standard of working hours in a certain month;
- when using summarized accounting - by dividing the salary by the average standard of working hours in the reporting period.
Other legislative nuances
Compensation for overtime can be made not only in money, but also by providing additional rest. This is in line with the provisions of Article 152 of the Labor Code of the Russian Federation: overtime hours are paid as usual, and unscheduled days off are not paid.
It should be borne in mind that compensation in money is a priority, made by default.
If an employee wants to get time for rest instead of money, he must inform his manager about this.
In practice, this happens in the following order:
- employee in writing submits an application for an unscheduled day off;
- in agreement with the head, the time for additional rest is determined;
- the provision of a day off for processing is fixed by an appropriate order or order.
According to the law, the time for rest cannot be less or more than the time that was unnecessarily spent on work. So, if an employee worked five hours, that is how many hours he can rest.
When organizing overtime work for "shift" employees, other provisions of the Labor Code of the Russian Federation should be taken into account. For example, the total processing period should not exceed four hours for one person on two consecutive days and 120 hours per year. In addition, pregnant women cannot work overtime. underage employees and persons combining study and work under student contracts.
It should also be remembered that according to Art. 103 of the Labor Code of the Russian Federation, work two shifts in a row is prohibited even with the consent of the employee.
Some types of production provide for a continuous cycle, in which the duration daily work exceeds the allowable. In this case, people work in shifts, for example, every three days. Work is also organized for security guards, watchmen, watchmen. About what you need to consider when applying for such employees to work, how to calculate their salary or dismiss them, in this article.
Recruitment
The work mode "day after three" assumes that part of the time the employee will work at night. Some categories of workers are prohibited from working at night. These are pregnant women (part 5 of article 96, part 1 of article 259 of the Labor Code of the Russian Federation) and employees under the age of 18 (part 5 of article 96, article 268 of the Labor Code of the Russian Federation). The exceptions are athletes and creative workers. If a night work not contraindicated in medical indications, then women with children under three years of age can be attracted to it; disabled people; employees with disabled children; employees caring for sick family members; single parents (guardians) raising children under five years of age. This is stated in part 5 of article 96 of the Labor Code of the Russian Federation.
In addition, employees for whom the law establishes restrictions on the duration of daily work cannot be involved in work in the "day after three" mode. Such restrictions are provided, for example, for drivers. When summarized, the duration of the daily work (shift) of drivers cannot exceed 10 hours. For intercity trips, the driver must be given the opportunity to get to the place of rest. In this case, the duration of daily work (shift) can be increased up to 12 hours. Accordingly, drivers in the “day after three” mode cannot work.
The duration of the daily work (shift) of the disabled is determined in accordance with medical opinion. For workers employed in work with harmful and (or) hazardous conditions labor, where a reduced working time is established, the maximum allowable duration daily work (shift) cannot exceed:
- with a 36-hour work week - 8 hours;
- with a 30-hour work week - 6 hours.
All employees working in a special regime must be familiar with this fact either when hiring (fixed in the employment contract) or at least two months before the introduction of such a regime of working hours (Article 74 of the Labor Code of the Russian Federation).
Table 1 lists the documents that must be drawn up when organizing work "in three days".
Table 1. Documenting work in the "day after three" mode
|
No. p / p |
Title of the document |
Comment |
|
Collective agreement or rules of internal work schedule |
In these regulations you need to install: Shift work mode; Duration of daily work (shift); The time of the beginning and end of work, as well as breaks in work, the alternation of working and non-working days; |
|
|
shift schedule |
The employer is obliged to bring the approved shift schedule to the attention of each employee no later than one month before its entry into force (part 4 of article 103 of the Labor Code of the Russian Federation). In the program "1C: Salary and personnel management 8" shift work schedules are described in the reference book Work schedules(menu Enterprise - Schedules). The program offers two ways to fill the chart: By template; Setting chart parameters manually. To do this, select the checkbox Set up manually |
|
|
Labor contract |
The specified mode of work must be fixed in the employment contract with the employee. |
|
|
Change of Terms Notice employment contract(if the employee previously worked in a different mode) |
If the employee refuses to certify with his signature in the notification that he is familiar with the upcoming changes, the employer draws up an appropriate act |
|
|
Notice of Opportunity to Refuse to Work at Night |
It is issued if women with children under three years of age are involved in night work; disabled people; employees with disabled children; employees caring for sick family members; single parents (guardians) raising children under five years of age |
|
|
Documents confirming the medical examination |
By itself, the mode of operation in the “day after three” mode is not a basis for a medical examination. However, mandatory medical examination is provided for certain categories of employees who, in practice, are often involved in work in the “day after three” mode. For example, such norms are established for employees of departmental security (Article 6 of the Law of April 14, 1999 No. 77-FZ) |
Changeable schedules
Let us consider in more detail the features of the design of the shift schedule.
When compiling them, the norm of working hours must be observed. Hours exceeding the norm of working time are overtime work, which, on the basis of Article 152 of the Labor Code of the Russian Federation, must be compensated in accordance with an increased amount.
In this regard, the question arises: can the employer include processing in the shift schedule and whether his actions will be lawful, provided that he pays overtime. To be more precise: is it possible to oblige employees to work, say, in two days?
According to the production calendar, the norm of working time in 2014 is 1,970 hours. If an employee works in the “day in two” mode, he will have to work 2,920 hours a year. It turns out that the employer deliberately creates conditions for overtime work, and this entails non-compliance with those guarantees for the duration of work that are established for citizens by law.
Usually, when working in the “day in three” mode, the duration of the shift is set to 24 hours. But there are exceptions. For example, an employer can extend a shift by one hour. lunch break: Set to start at 8 o'clock and end at 9 o'clock the next day. Is it possible to do so? Article 108 of the Labor Code of the Russian Federation says the following about breaks: during the day (shift), the employee is given a break for rest and food lasting no more than two hours and at least 30 minutes, which working time does not turn on. The legislation does not contain a direct prohibition to increase the duration of the shift for the lunch break. The Labor Code of the Russian Federation only says that when working in the "three days" mode, each group of employees must work for the established working hours in accordance with the shift schedule. The working hours are set by the employer in compliance with certain conditions in the internal labor regulations.
There is another feature that needs to be taken into account when drawing up a schedule. As a rule, when working “in three days”, an employee, for example, a security guard, must constantly be at the workplace. In such a situation, the employer is obliged to provide the person with the opportunity to rest and dine during working hours (Article 108 of the Labor Code of the Russian Federation). The list of such works, as well as places for rest and eating, are established by the internal labor regulations. If an employee cannot leave during lunch workplace, which means that the lunch break is considered working. That is, the hours allotted for eating are paid in full. Therefore, there is simply no reason to increase the duration of daily work during the lunch break.
Note that the amount of wages depends on how breaks for rest and lunch are organized. Suppose, based on the conditions of production, a break is not provided (this should be specifically stipulated in the labor or collective agreement). Then, an employee who works 24 hours a day in three hours with an hourly rate and a two-hour lunch break will be paid for 22 working hours (per day).
If, according to the conditions of production, it is impossible for the employee to provide a break for rest and food, but the employer provided him with such an opportunity during working hours, then the number of working hours in the time sheet does not decrease.
Summary accounting - a right or a duty?
The enterprise is not obliged to establish a summarized time record for employees who work in the “day after three” mode. Nevertheless, according to officials, this method of time recording is most common with such an organization of labor (Rostrud letter dated 08.06.2007 No. 1922-6).
The method of summarized accounting involves hourly accounting of working time, when the actual hours worked are recorded in hours, and not days, as in daily accounting (Decision of the Supreme Court of the Russian Federation of August 30, 2006 No. GKPI06-632). If the summarized accounting is not established, you will have to constantly record processing and pay overtime. In those cases where the summarized accounting with the accounting period is established, the periods of processing will be fully or partially offset by periods of shortfalls.
Normal working hours per accounting period is determined on the basis of the weekly working hours established for this category of workers. For workers entitled to reduced hours of work, the normal number of hours worked per reference period is reduced accordingly.
The procedure for introducing summarized accounting of working hours is established by the internal labor regulations (Article 104 of the Labor Code of the Russian Federation).
Note: if the procedure for introducing summarized recording of working hours is not established by the Internal Labor Regulations, but is prescribed only in an employment contract with an employee, the labor inspectorate may recognize this as a violation of the law. The materials of inspections indicate that this act is regarded as a gross violation in the field of labor protection.
Salary in the "day after three" mode
Employees working in the "day in three" mode, in general order surcharges are charged (for more details, see table 2):
- for work at night;
- for work on a holiday;
- for work on a day off;
- for overtime work.
Table 2. Surcharges for work in the "day after three" mode
|
Surcharge name |
Surcharge calculation |
Comment |
Base) |
|
Surcharge for night work (from 22:00 to 06:00) |
In their internal documents the employer can set any amount of additional payments for night shifts, but not less than 20 percent of the hourly wage rate for each hour of work at night. |
If the employee receives a salary, it becomes necessary to calculate the hourly rate (since payment for night work is calculated based on the number of hours worked in this mode). The normative procedure for recalculating the monthly tariff rate ( official salary) in the hourly rate is currently not regulated, so the program "1C: Payroll and personnel management 8" supports three calculation options **: Based on the monthly norm of time according to the employee's schedule; Based on the yearly average number of hours per month***; Based on the monthly norm according to the production calendar. |
Decree of the Government of the Russian Federation of July 22, 2008 No. 554 |
|
Extra pay for evening work |
|||
|
Extra pay for working on a day off |
It is important to bear in mind that if Saturday or Sunday is a working day for an employee according to the shift schedule, we are not talking about engaging in work on a day off. |
||
|
Overtime pay |
The first two hours of work must be paid at least one and a half times, and the following hours - at least twice. In the internal documents of the employer, you can establish increased amounts of additional payment |
If the employee has a summary accounting, the number of hours worked overtime is calculated only according to the results of the accounting period. |
|
* An employee who worked on a holiday night is entitled to two additional payments: for work on a holiday and for work at night. The calculated amounts must be added up.
** The selected option is used for all calculations related to the conversion of the monthly tariff rate into an hourly one (calculation of payment for overtime work, additional payment for night work, payment for work on holidays and weekends, etc.)
*** It is this method that is recommended by specialists of regional labor inspectorates (see, for example, the question of February 24, 2013 16:43). The hourly rate for this method of calculation is determined by dividing the salary by the average monthly number of working hours. The average monthly number of working hours is calculated as the quotient of the annual number of working hours according to the production calendar, divided by 12.
At the request of an employee who worked on a weekend or non-working holiday, he may be granted another day of rest.
In this case, work on a weekend or non-working holiday is paid in a single amount, and the day of rest is not subject to payment.
At overtime work at the request of the employee, instead of additional payment, he may be provided with additional rest time not less than the time worked overtime. The salary for the month in which such time off was granted is not reduced. Rest day is simply excluded from the norm of working time. This recommendation is contained in the letter of Rostrud dated February 18, 2013 No. PG / 992-6-1.
Example
|
A watchman I.I. works at Baza LLC. Ivanov. The watchman works in the “day after three” mode. Ivanov does not belong to the categories of workers entitled to a shortened working week. In January 2014, he worked a day (from 8.00 to 8.00 the next day): January 2, 6, 10, 14, 18, 22, 26 and 30 January. The employee has a summary account. Reporting period- year. His salary is 10,000 rubles. The accountant calculated Ivanov: Surcharge for night work; Additional payment for work on a holiday. The accountant did not calculate the additional payment for overtime work. The number of overtime hours will be calculated at the end of the year. At night, Ivanov worked: 8 hours. x 8 days = 64 hours. During the period of work on a holiday, it is necessary to: Since the employee has a salary, when calculating the additional payment, it becomes necessary to calculate the hourly rate (see table 2). The internal documents of the organization fix the procedure for calculating the hourly rate based on the average number of hours per month for the year. The accountant set a variant of the calculation algorithm in the form of accounting parameters settings on the tab Calculation algorithms(menu Service - Accounting Options - Accounting Settings). The annual rate of working hours in 2014 according to the production calendar is 1,970 hours. Ivanov's hourly rate is: The accountant made the calculation of the salary for the month using the document Payroll for employees of organizations(menu Payroll by organization - Payroll for employees). Night work allowance is: As clarifies State Committee Council of Ministers of the USSR on the issue of labor and wages and the Presidium of the All-Union Central Council of Trade Unions "On compensation for work on holidays" dated 08.08.1966 No. 13 / P-21, for workers with a summarized account of working hours, work on holidays is included in the monthly norm of working hours, and they must comply with this norm, including work on non-working holidays. Holiday pay will be: For January 2014, the employee was paid a salary in the amount of: |
Sleep during work hours
Long breaks for sleep during the shift, including the “day after three”, are not provided for by law. Therefore, if an employee sleeps for several hours at night, this time is considered working and must be paid in accordance with the general procedure.
This conclusion is also confirmed judicial practice. So, according to the materials of one of the cases, the labor duties of a citizen included the protection of a fenced parking lot. An agreement was concluded with the employee on the full liability, he worked in the "day after three".
When on duty this person theft was committed vehicle, and the employer presented his employee with claims related to compensation for damage, the citizen insisted that he was not guilty of what happened: he did not see how the theft was committed, because he was sleeping.
The court sided with the employer: in fulfilling his labor duties and protecting the values entrusted to him, the citizen had to be aware and foresee the onset of negative, harmful consequences that occurred as a result of improper performance by him official duties(decision of the Noginsk city court of the Moscow region dated 02.10.2012, civil case on the claim of the Company with limited liability « Trading house"Biserovo" to Novikov V.Yu.).
Replacing an absent employee
Working in the "day after three" mode, employees are on duty in turn. However, from time to time they need to replace each other, for example, in the case of vacation or illness.
The employer in such substitutions must take into account the following:
- work for two shifts in a row is prohibited, this is a violation of labor laws;
- an employee performing the duties of a temporarily absent person will have processing, he will need to pay overtime.
In practice, the following situation is very common. As soon as one of the shifters goes on sick leave, the employer's management re-arranges the shift schedule, forcing employees to work in the “day in two” mode. It is framed as a partnership.
This option of replacing an absent employee is a violation of the law. After all, the employer actually attracts employees to overtime work, but does not want to pay for the work in an increased amount, so he is trying to arrange a part-time job.
Sometimes employees change shifts among themselves. Position labor inspections on this issue is clear. The employee cannot, at his own discretion, change the schedule of shifts and change working days with other workers. Violation by an employee of a certain mode of work in the absence of good reasons considered a disciplinary offence.
Such clarifications can be found on the websites of regional labor inspectorates (see, for example, the question of 23.09.2010 07:31).
Another situation for replacing an absent worker is maternity leave and parental leave. For this period, a temporary employee is hired, but the workplace is retained for the maternity leave.
If a woman decides to return to work early, and her child is under three years old, then management may face an unpleasant situation. An employee has the right to refuse to work at night, and the employer has no legal grounds to refuse her. This follows from the provisions of Article 96 of the Labor Code of the Russian Federation.
Another restriction: the employer is obliged to establish a part-time (shift) or part-time work week at the request of one of the parents who has a child under the age of fourteen. In case of part-time work or a shift, the number of hours of work per day or shift is reduced in comparison with what is established in the organization by the routine or schedule for this category of workers. When working on a part-time basis, the employee is paid in proportion to the time worked by him or depending on the amount of work performed by him.
If a woman is denied daytime work only, she will have grounds to file a complaint with the labor inspectorate and even go to court. If the employer satisfies her requirements, he will be forced to hire another person to maintain a continuous workflow (also on a part-time basis).
Note that at the initiative of the employer, a woman with a child under the age of three and single mothers with a child under 14 years of age (a disabled child under 18 years of age) cannot be fired, except for the following cases:
- liquidation of the organization (termination of the activity of an individual entrepreneur);
- repeated non-fulfilment by an employee without good reason job duties if he has a disciplinary sanction;
- single gross violation employee of labor duties (absenteeism, appearance at work in a state of alcohol intoxication etc.);
- the commission by an employee directly serving monetary or commodity values of guilty actions, if these actions give rise to a loss of confidence in him on the part of the employer;
- submission by an employee of false documents when concluding an employment contract.
Last working day upon dismissal
The day of termination of the employment contract is the last day the employee goes to work (part 3 of article 84.1 of the Labor Code of the Russian Federation). But what if the last working day falls on a shift?
For example, according to the schedule from 8 o'clock on the 28th to 8 o'clock on the 29th, the employee must be on duty, and two weeks before that he wrote a statement with a request to dismiss him on the 28th.
Should a citizen work this shift in full? Does he need to go to work before 00:00 on the 28th, and how to make the final settlement with him if the accounting department works until 6:00?
The employee must complete his shift to the end. This answer follows from the clarifications of the regional labor inspectorates (see, for example, http://git78.rostrud.ru/18697/37386.shtml, paragraph 10). Therefore, the day of dismissal will be the 29th. On this day, the employer is obliged to issue a work book and make the final payment.
If the employee does not come for that day work book, the employer must send him a notification about the need to appear for this document or agree to send it by mail (Article 84.1 of the Labor Code of the Russian Federation). Such a requirement is contained in article 84.1 of the Labor Code of the Russian Federation.
Severance pay calculation
The current legislation of the Russian Federation provides for several cases of payment of severance pay (see Table 3).
Table 3. Sizes of severance pay
|
No. p / p |
Case of severance payment |
Severance pay |
|
Organization liquidation |
Severance pay in the amount of average monthly earnings |
|
|
Downsizing (staff) |
||
|
Dismissal due to refusal to transfer to another job (lack of other work in the organization) for health reasons according to a medical report |
Severance pay in the amount of two weeks average earnings |
|
|
Dismissal due to conscription military service or assignment to alternative civilian service |
||
|
Dismissal in connection with the reinstatement of an employee who previously performed this work |
||
|
Dismissal in connection with the refusal of an employee to transfer in connection with the relocation of the organization to another location |
||
|
Dismissal due to the onset of complete disability of an employee |
||
|
Dismissal in connection with the refusal of the employee to work after changing the terms of the employment contract |
The calculation of the severance pay is carried out by multiplying the number of working days (hours) for the corresponding period (month, two weeks) by the indicator “average daily (hourly) earnings. The average daily (hourly) earnings should be calculated in a general manner (Decree of the Government of the Russian Federation of December 24, 2007 No. 922).
With regard to determining the number of working days (hours) for the relevant period, practitioners often have questions. The current legislation of the Russian Federation does not clearly state which calculation to apply if an employee works in the “day after three” mode.
There are two points of view on how to calculate severance pay: based on the work schedule set for the employee or according to the production calendar.
In our opinion, the second point of view is the most reasonable.
After an employee leaves, the schedule set for him ceases to operate. Therefore, when calculating the severance pay, one should be guided by general indicator working days (hours) according to the production calendar.
If the employee does not have a summarized accounting of working hours, it is necessary to calculate the average daily earnings. It must be multiplied by the number of working days according to the 5-day working week calendar in a two-week period (in a month) after the day of dismissal.
Most often, an employee has a summarized accounting set (for more details, see the section of this article “Summarized accounting: a right or an obligation?”). In this case, you need to calculate the average hourly earnings. It must be multiplied by the number of working hours according to the 5-day working week calendar in a two-week period (in a month) after the day of dismissal.
This approach is also confirmed by the materials of court decisions adopted on the issues of calculating severance pay (see, for example, decisions of the Dzerzhinsky District Court of Novosibirsk dated April 20, 2012 No. 2-442/12, Tyukhtetsky District Court of the Krasnoyarsk Territory dated July 23, 2010 No. 2- 52/2010).