In case of restoration of the dismissed worker onWork on the decision of the court, the employer faces two questions: what kind of payments are necessary for such an employee and what to do with the amounts that were paid on dismissal?
Employer who committed illegal dismissal(In accordance with Part 2 of Article 394 of the Labor Code of the Russian Federation), moral damage in the amount determined by the court (Part 2, Article 237 of the Labor Code of the Russian Federation), as well as court costs (Part 1, Article 98 and Part. 1 item 88 ГПК the Russian Federation).
All the time when the employee was deprived ofThe opportunity to work, that is, was dismissed and disputed his dismissal in court, is considered a compulsory absenteeism. During the forced absence, the employer pays the average salary to the reinstated employee (Article 139 of the Labor Code of the Russian Federation), in calculating which only working days are taken into account. At the same time, the awarded sums can be indexed by the court.
With the calculated average earnings, personal income tax is maintained. That is, the organization in this case on the basis of paragraph 1 of Art. 24 and art. 226 Tax Code is recognized as a tax agent and is obliged to calculate and withhold the amount of personal income tax.
If the execution sheet specifies a fixedThe amount of unearned earnings, the employer must give to its employee without withholding tax. Personal income tax can be withheld on the next payment, and if there is no such payment, the employer shall notify the tax inspector in writing about the impossibility of withholding the tax and the amount of the taxpayer's debt. In this case, the employee independently calculates and pays personal income tax.
In addition to personal income tax on average earnings for the period of forced absenteeism, insurance premiums are assessed.
According to Art. 236 of the Labor Code of the Russian Federation in connection with the violation by the employer of the established period of payment for the amount of earnings not earned by the employee, interest is accrued (monetary compensation). Cash 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 earnings during the forced absence are paid simultaneously with the cancellation of the dismissal order and the restoration of the employee at work.
Compensation for non-pecuniary damage
According to Part 2 of Art. 237 of the LC RF, the moral damage caused to the employee by the unlawful actions of the employer is reimbursed to him in cash in the amount determined by the court in the decision to restore the employee. Compensation for non-pecuniary damage is not subject to personal income tax and is not subject to insurance premiums.
Reimbursement of court costs
The party that lost the trial, by court decision, must reimburse the other party for all the legal expenses incurred by it (Part 1, Article 98 of the RF Code of Civil Procedure).
If the court decides in favor of the employee,The employer must pay the duty (Article 103 of the Code of Civil Procedure of the Russian Federation and Article 333.17 of the Tax Code of the Russian Federation) within 10 days from the date of entry of the court decision into legal force (subparagraph 2 of clause 1 of Article 333.18 of the Tax Code of the Russian Federation).
At the same time, the amounts of reimbursement of court expenses are subject to personal income tax. Insurance premiums on them are not charged.
The offset of the amounts already paid on dismissal
The employee with whom the employment contract was illegally terminated at the initiative of the employer, upon discharge, the following amounts are paid:
- wages for time worked (the amount of work performed) -
- compensation for unused leave, if by the time of dismissal a part of leave he did not take a walk-
- severance pay (if applicable).
After the court recognized the fact of dismissal as illegalCompensation for unused vacation and severance pay is recognized as overpayment, as paid without sufficient grounds. Paying to the rehabilitated employee the amounts assigned by the court, the employer can reduce them by the amount of severance pay received by the employee upon dismissal. 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 absenteeism, the employee received unemployment benefits at the labor exchange, salary from another employer, remuneration for work under a civil law contract, temporary disablement allowance, etc., such payments are not recognized as illegally obtained.