In the case of restoration of the dismissed employee tothe work of the court, two questions arise to the employer: what payments must be made to such employee and what to do with the amounts that have been paid for dismissal?
The employer, who allowed the illegal dismissalis obliged to compensate the restored employee unearned income (according to h. 2, Art. 394 of the Labour Code), non-pecuniary damage in the amount determined by the court (Art. 2, Art. 237 of the Labour Code), as well as court costs (Art. 1, Art. 98 and h. 1 Art. 88 CPC RF).
All the time when the employee was deprivedthe opportunity to work, that is, was dismissed and challenged his dismissal in court, it is considered forced absence. During his forced absence the employer shall pay the employee the average salary restored (Art. 139 of the Labour Code), which are taken into account in the calculation of working days only. In this case the amounts awarded by the court can be indexed.
With the calculated average earnings withheld personal income tax. That is the organization, in this case on the basis of para. 1, Art. 24 and Art. 226 of the Tax Code is recognized as a tax agent and shall calculate and withhold the amount of personal income tax.
If specified in the writ fixedthe amount of unearned income, the employer must give the employee her without deduction of tax. PIT can be held at the next payment, and if such payment is not, the employer shall notify in writing the tax office about the impossibility of withholding tax and the amount of tax debt. In this case, the worker independently calculate and pay personal income tax.
In addition to personal income tax on average earnings during his forced absence accrued premiums.
According to Art. 236 of the Labour Code in connection with the breach by the employer due date of payment of the sum of unearned interest accrued employee earnings (cash compensation). Monetary compensation is calculated on the basis of 1/300 of the current refinancing rate of the Bank of Russia, and is not subject to personal income tax.
Unearned income for the period of forced absence is paid simultaneously with the abolition of the order of dismissal and reduction of the employee at work.
Compensation for moral damage
According h. 2 tablespoons. 237 TC RF-pecuniary damage caused to the employee by unlawful actions of the employer, it shall be compensated in cash in the amount determined by the court in the decision on the restoration of the worker. Compensation for moral damage is not subject to personal income tax and is not subject to taxation of insurance premiums.
Reimbursement of court costs
The party losing the lawsuit, a court decision must compensate the other party all the incurred court costs (Art. 1, Art. 98 CPC RF).
If the court decides in favor of the employee,duty to pay the employer (art. 103 CCP RF and Art. 333.17 of the Tax Code) within 10 days from the date of the court decision comes into force (Nos. 2 para. 1, Art. 333.18 of the Tax Code).
At the same time the amount of reimbursement of costs subject to personal income tax. Insurance premiums are not charged for them.
Passed already paid severance amounts
An employee with whom an employment contract was illegally terminated by the employer, severance paid the following amounts:
- Wages for time worked (performed workload) -
- Compensation for unused leave, if at the time of the dismissal of the holiday he did not otgulyal-
- Severance pay (if applicable).
After the court acknowledges the fact of illegal dismissalcompensation for unused vacation and severance payments are recognized as an overpayment is paid without sufficient grounds. Paying restored employee amount designated by the court, the employer may reduce the amount of severance pay, the employee received severance. But the amount of compensation for unused vacation can be credited only with the subsequent accrual of vacation.
Another important feature, if during the periodforced absence worker received unemployment benefits at the labor exchange, the salary for another employer, the remuneration for work on civil contract, temporary disability benefits, etc., such payments are not recognized as illegally obtained.</ P>