If you are going to resign from your current job –regardless of the reason that motivates you– or if your company has made the decision to terminate your work, doubts about what you will receive as a settlement of social benefits must be one of the Questions that repeatedly appear in your head.
But, what does the liquidation of social benefits include? According to the Ministry of Labor and Employment Promotion (MTPE) , "the settlement includes the payment of pending social benefits such as compensation for truncated time of service (CTS), truncated vacations and truncated bonuses."
WHEN IS THE LIQUIDATION PAID?
According to the MTPE, the payment of the liquidation will be made within 48 hours of the termination of the worker , otherwise the labor interests set by the Superintendence of Banking, Insurance and AFP (SBS) will begin to be computed.
"Within 48 hours after the termination, the employer must deliver the settlement of social benefits, the letter addressed to the corresponding financial institution to release the CTS, the fifth category tax withholding certificate and the work certificate", adds Armando Gutiérrez, main partner of the Rubio Leguía Normand Studio .
HOW IS THE LIQUIDATION CALCULATED?
Although the concepts that make up the settlements may vary depending on the benefits granted by the company and the regime in which the worker works, the labor worker Armando Gutiérrez recalls that, basically, it is made up of CTS, vacations and truncated bonuses.
As he explains, to calculate the truncated CTS , the remuneration received on the date of termination is used as a base, and 1/6 of the legal bonus received during the semester must be added to this amount. "The amount to be paid in the settlement will be equal to as many twelfths and thirties as months and days worked since the last semester deposited," he clarifies.
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Thus, for example, if a worker receives a monthly remuneration of S/1,800 and will cease on August 15, 2021, the computable remuneration for the truncated CTS will be calculated as follows :
|1/6 July bonus||S/300|
But, taking into account that the last CTS deposit for the November/April semester has already occurred, the truncated CTS must be calculated for the months of May, June, July, and the 15 days of August (3 months and 15 days) . So:
|S/2,100 / 12 months x 3 months||$525|
|S/2,100 / 12 months / 30 days x 15 days||$87.50|
In the case of truncated gratification -explains the partner of Rubio Leguía Normand– the remuneration received on the date of termination will be used as the basis for calculation, and it will be equal to as many sixths of that remuneration as full months worked within the corresponding semester (from January to June, or from July to December).
Continuing with the previous example, on the termination date, the worker only worked one full month in the last semester (July), so the truncated bonus will be calculated as follows :
|S/1,800 / 6 months x 1 full month||S/300|
And, considering that workers in the general regime are entitled to 30 days of vacation per full year of service. In the termination settlement, the vacations generated and not enjoyed during the employment relationship must be paid, as well as the truncated vacations, which are "those that were being generated in the last year of service and that will be equivalent to as many twelfths and thirties as months and days worked in the last year.
Likewise, Armando Gutiérrez maintains that “in the event that the worker has pending vacations that he did not enjoy within the 12 months following its generation, he will be entitled to vacation compensation, equivalent to remuneration –for the 30 days of vacations– or the proportion corresponding, and the calculation base for the three concepts is the remuneration received on the date of termination.
In this sense, and continuing with the previous example, if the worker started work on February 1, 2019 and only enjoyed 15 vacations in 2020, we have three key data for calculating vacation pay, vacation compensation, and truncated vacation :
· From February 1, 2019 to January 31, 2020, 30 vacation days were generated, which had to be enjoyed until January 31, 2021. However, the worker only enjoyed 15 vacation days during 2020, for which he is owed 15 vacation days, and vacation compensation proportional to those 15 days.
|S/1,800 / 30 days x 15 days pending||S/900 for vacations in the 2019/2020 period|
|S/1,800 / 30 days x 15 days pending||S/900 for vacation compensation for the 2019/2020 period|
· From February 1, 2020 to January 31, 2021, 30 days of vacation were generated, which could be enjoyed until before January 31, 2022, but the worker did not enjoy them, so those 30 days are owed vacation. Since the termination date occurred before January 31, 2022, these vacations do not generate vacation compensation.
|S/1,800 / 30 days x 30 days pending||S/1,800 for vacations in the 2020/2021 period|
· From February 1, 2021 to August 15, 2021, six months and 15 days have elapsed, so truncated vacations will be calculated as follows:
|S/1,800 / 12 months x 6 months||S/900|
|S/1,800 / 12 months / 30 days x 15 days||$75|
INDEMNITY FOR ARBITRARY DISMISSAL
This right, according to the labor expert Armando Gutiérrez, is generated when the termination of the employment relationship is due to the unilateral decision of the employer, and is not based on a just cause provided by law. "The amount of compensation is equivalent to one and a half remuneration per year of service, up to a limit of 12 remunerations," he indicates.
Based on the previous example, if the worker was arbitrarily dismissed, the compensation would be calculated as follows:
|$1,800 x 1.5||S/2,700|
|S/2,700 x 2 years||S/5,400|
|S/2,700 / 12 months x 6 months||S/1,350|
|S/2,700 / 12 months / 30 days x 15 days||$112.50|
|Compensation for arbitrary dismissal||S/ 6,862.50|
But, due to the fact that as a consequence of the state of emergency decreed by the Government due to COVID-19, several workers have had paid licenses that have not yet been compensated, "these could affect their settlement of social benefits, as has indicated the First Chamber of the Labor Inspection Court in Resolution No. 052-2021-SUNAFIL/TFL”, affirms the labor activist.
WHAT HAPPENS IN THE EVENT OF NON-PAYMENT?
If the employer entity does not pay the settlement within 48 hours after the termination of the employment relationship, the worker will have the option of resorting to an inspection process carried out by the National Superintendence of Labor Inspection (Sunafil) or a conciliatory process in the MTPE or before the Judiciary.
According to the MTPE, workers have four years to demand the payment of social benefits and accrued remuneration, computed from the termination of the employment relationship.