How to fire employees during liquidation of an enterprise in 2021

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Published: 05/21/2016

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One of the grounds for terminating employment contracts with employees is the closure of an enterprise or organization. Such liquidation is usually associated with bankruptcy and insolvency of the employer.

According to Article 180 of the Labor Code, all employees of an enterprise or organization receive written notice from management about the upcoming liquidation . Having received such a document, the employee may be dismissed early. However, the initiative in this case must come from the employer , and only his consent is required from the employee. Employees do not have the right to demand termination of employment contact after receiving notice.

• Grounds for dismissal Employee initiative
• Employer initiative

The procedure for dismissing employees during liquidation of an enterprise

An employer and an employee in an employment relationship are two parties who have entered into an agreement with each other and have the right to protect their rights, enshrined in the Labor Code. The first has the right to dismiss an employee for various reasons, but each specific case obliges him to carry out the procedure according to the regulations, to carry out the subtleties provided for this reason. If the HR department is involved in this, responsibility for compliance with the corresponding list of actions rests with the HR officer. In small structures, where this role is performed by the owner or manager himself, strict compliance of actions with the law is his responsibility.

The employment contract is terminated with all employees , without exception, since the liquidation procedure is launched, the result of which is the exclusion of the structure from all registers, the complete cessation of existence - Part 1 of Art. 81 (hereinafter – Labor Code of the Russian Federation).

Reference! The effect of the article provides for the possibility of releasing from the workplace everyone who has additional labor guarantees - from pregnant women, single mothers to the disabled, veterans, without exception. They have no privileges, dismissal during the liquidation of the organization occurs on a general basis, according to the principle, no workplace - no work.

Liquidation of an enterprise and the procedure for dismissing employees is as follows:

• adoption of an appropriate decision by the founder or a group of persons acting in this role;
• the creation of a liquidation commission carrying out the closure procedure, which will interact with those being dismissed;
• informing employees or workers in advance about the upcoming closure;
• notification of trade union representatives and employees;
• submission of relevant information to the employment service;
• total dismissal due to liquidation of the organization, filling out all necessary documents;
• dismissal of those who do not want to wait for the period provided by law;
• submission of information to the military registration and enlistment office (if necessary), as well as to the territorial division of the FSSP.

Attention! The subtleties of liquidating an organization and dismissing employees, as well as the need to comply with them, are provided for by the Labor Code, but some nuances are regulated by other documents (Federal Law No. 1032-1). It is necessary to take these nuances into account, especially for representatives of the liquidation commission. Federal legislation provides for a situation with mass layoffs.

The decision on liquidation can be made through the court , there are also grounds for this: Art. 61 Civil Code .
It states that the basis for a court decision may be the illegal activities of the structure or the lack of permits.

What regulatory documents should be used?

When formalizing such termination of an official relationship, the following are used:

• the first part of Article 81 of the Labor Code of the Russian Federation (LC RF);
• Article 176 of the Labor Code of the Russian Federation;
• Federal Law of November 14, 2002 No. 161-FZ “On State Municipal and Unitary Enterprises,” which defines the procedure for liquidating production for various legal reasons;
• Article 140 of the Labor Code of the Russian Federation, which determines the terms of settlement with dismissed employees
• Article 142 of the Labor Code of the Russian Federation assumes the employer’s liability for violating the terms of payment of wages and severance pay of the country’s Civil Code and some other regulatory and legislative documents.

The right to notice of dismissal at least two months in advance

A warning is the first step in a long chain of actions, taken immediately after an independent decision of the sole founder, or after a general meeting and voting. It is compiled in writing and then transmitted. Deadlines vary:

• for those working under open-ended employment contracts - no later than two months before the due date (Article 180);
• if work agreement of 2 months or less , notification is possible 3 calendar days before the date of liquidation (Article 292);
• seasonal workers are notified a week before the due date (Article 296);
• in case of mass dismissal, clause 2 of Article 25 of Law No. 1032-1 comes into force , providing for a period of three months , but the norms for recognizing an act as such are different (Article 82), therefore they are dictated by industry or territorial agreements.

Important! The delivery of the notice must certainly be accompanied by the signature of the employee to whom it is addressed. To obtain the result, a statement is drawn up or a second copy is printed. The employee's signature guarantees that due process has been followed, so the statement or a duplicate with the signature remains with the former employer.

There are additional conditions - simultaneously with the delivery of the document, a mandatory notification is made to the employment service . The procedure is carried out until the registration of the liquidation certificate through the Federal Tax Service.

Basic rules for notifying employees about layoffs following liquidation

In accordance with Art. 180 of the Labor Code of the Russian Federation, such messages must be made no later than 2 months before the date of the intended dismissal of employees. If citizens work on the basis of short-term employment contracts for a period of up to 2 months, they must be notified that the enterprise will be liquidated or employees will be fired at least 3 days before the dismissal.
Each employee must be notified individually in writing with a personal signature. If delivering the notice in person is problematic, the organization sends it to the employee by mail (usually at the place of registration or actual residence) by registered mail with notification and inventory. And this procedure is sufficient to consider the employee aware of the upcoming termination of the employment contract. Confirmation of the fact that all employees have been informed are copies of notifications certified by the signatures of employees, or postal counterfoils (if the notification was sent by letter).

The right to wages, bonuses, and other payments

The employer has every right to liquidate the enterprise if it becomes unprofitable, force majeure circumstances arise, or for other reasons specified in Art. 77 (clause 4) and art. 80 (Part 2). The need for written notification is prescribed by Art. 180 (Part 2), this is already a feature of the legislative mechanism that guarantees the rights of the employee. Compensation for the need to find a new job, lack of livelihood during this period and other physical and moral inconveniences is also enshrined in the Labor Code:

1. An additional payment is due to a person who terminates the agreement from the moment of receipt of the notice or before the expiration of 2 months. It is ambiguous, since it is counted from the date of dismissal during liquidation until the official liquidation deadline (Article 180, Part 3).
2. Salaries are calculated for all time worked, but there are nuances when the company has already ceased operations.
3. Compensation for unused vacation is issued if the employee has not yet received it in the current year.
4. Severance pay is based on average monthly earnings , according to Art. 178 (part 1), excluding bonus payments and allowances.
5. An additional payment in the same amount must be given to a person two months after dismissal if he is registered with the employment service and was unable to find a job. But the severance pay already received is deducted from this amount.
6. a chance of receiving money for the third month if 3 conditions are met - applying to the health center no later than 14 days, the absence of vacancies in the specialty or suitable work there, and the decision of the authority on the need for such a payment (Article 178, part 2).

Reference! Dismissal of employees during the liquidation of an enterprise, as well as other cases when the employer’s right to terminate activities and reduce jobs is exercised, provides for parallel protection of the employees’ right to material compensation. But it can be lost (Article 178) if the employee managed to find a job before 2 months or extended if even the employment service failed to do this.

Who can be fired?

As is known, one of the grounds for terminating an employment relationship is termination of an employment contract in connection with the liquidation of an organization (that is, termination of its activities without transfer of rights and obligations to other persons) or termination of the activities of an individual entrepreneur (Clause 1, Part 1, Article of the Labor Code of the Russian Federation ).
This is the only basis for dismissal at the initiative of the employer, in which all employees are subject to dismissal. Including disabled people, those on vacation, minors and pregnant women.

The rules provided for dismissal in connection with the liquidation of an organization also apply when terminating employment contracts with employees of a branch, representative office or other separate division located in another locality, in the event of termination of its activities.

Right to severance pay

Only final settlement with employees and submission of reports to the Pension Fund mean the complete implementation of all procedures for dismissal in the event of liquidation. All employees have the right to receive wages for actual hours worked, compensation for vacation (if it is not used), severance pay and payment of the average amount for the period of their livelihood:

1. An employee receiving a pension is legally no different from other people, so he can also receive everything he deserves. Since misunderstandings repeatedly arose on this matter, two letters were sent from Rostrud, clarifying this issue (No. 594 and No. 1754-6-1).
2. Severance pay and compensation must be paid on the day of dismissal or the next day if the company or employee is no longer engaged in work. He can apply for payment upon the date following it (Article 140) or later, but not by the employer’s deferral, but according to his own circumstances.
3. Severance pay is guaranteed by current legislation , which also regulates the calculation procedure: it is paid based on average monthly earnings for the last quarter.

we are talking about a 6-month benefit for workers in the Far North or three times the amount due under certain conditions, it is not subject to personal income tax or any insurance contributions .

Payments

The amount of accrued payments depends on whose initiative the employment contract was terminated.

Upon dismissal on a general basis (together with the rest of the staff) on the initiative of the manager, the employee will receive:

• salary for the last month of employment;
• compensation for all unused vacation days, as well as payment for sick leave, if any;
• severance pay accrued for one month in the amount of the average monthly salary.

Additionally, the employee receives payment for the entire period of searching for a new job.

The law allows no more than 2 months for this. Payment includes severance pay. And in order for the former employer to pay for the third month, it is necessary to submit a certificate from the local employment center, which will confirm the fact of temporary unemployment (Article 178 of the Labor Code). Moreover, it is important to register with this organization within two weeks from the date of termination of the employment contract.

When calculating on their own initiative, in addition to the listed payments, the employee receives additional compensation for all days remaining before the announced date of termination of contracts with all employees.

Find out more about time-based wages. Apply for sick leave? Here it is written how to arrange it correctly if you are on vacation. You can find out the competent advice and information you need on calculating maternity benefits in our article.

Results

Russian legislation protects the rights of the employer to liquidate an enterprise and the rights of employees to receive financial compensation during this procedure:

1. Subtleties and nuances are recorded in the Labor Code and other documents that have the force of law.
2. Notice periods vary depending on the region and the duration of the employment agreement.
3. The amount of severance pay is determined by the average monthly earnings for the past quarter.
4. Compensation for vacation is due if the employee did not take it in the current year.

Compensation for unused vacation

Vacation compensation is mandatory for each employee. Even if an employee has worked for the company for less than 6 months, he has the right to compensation for unused vacation.

This is also important to know:
How much compensation is paid for unused vacation upon dismissal?

If the employee has used the vacation in advance, then the administration does not have the right to withhold vacation pay from the payments due. Calculation of compensation upon dismissal is made at the rate of 2.33 days for 1 month of unused vacation, rounding the number of months according to mathematical rules.

Basic Concepts

Liquidation of an enterprise is a procedure whose purpose is to officially terminate its activities and remove the entry from the registers of registration authorities. It involves a long period of time. Depending on the legal form and the number of creditors, it can take more than a year.

Liquidation of an enterprise as a procedure may have its own nuances depending on the circumstances, but it necessarily goes through a number of stages common to all:

• Making a decision to begin the liquidation process.
• Formation of a commission responsible for carrying out subsequent liquidation measures or appointing a responsible person.
• Drawing up a liquidation balance sheet, which is notified in writing to employees of the nearest branch of the Federal Tax Service.
• Carrying out settlements with creditors.
• Final approval of the liquidation balance sheet.
• Sending a corresponding notification to the Federal Tax Service about the implementation of all necessary measures and about the final liquidation of the organization (for individual entrepreneurs - about closure).
• Making corrective entries in the Unified State Register of Legal Entities or in the Unified State Register.

Dismissal of employees is one of the stages of settlements with creditors.

Expert commentary

Platonov Alexander

Lawyer

At each enterprise, the process of termination of employment relations may also have its own characteristics, but it is also characterized by common features. The main one is that all employees are subject to dismissal. Those. if in other cases it is difficult to terminate a contract with minor citizens and impossible with pregnant women, then during liquidation everyone without exception will be fired.

Employer's procedure

In order for the employer’s actions to comply with labor legislation and not be challenged in court, it is necessary to adhere to the following algorithm of actions:

1. Notify the union three months before personnel changes begin.
2. Create a new staffing schedule.
3. Based on the new staffing table, create an order to reduce the number or staff, and bring it to the attention of employees subject to reduction.
4. Create a dismissal order and familiarize interested parties with it against signature.
5. Calculate and make all necessary cash payments and compensation.
6. Transfer information about those who have lost their jobs to territorial employment centers.