What categories of employees are subject to dismissal when the owner of the organization changes?

Definition of the concept

Change of ownership is the process of transferring property rights in the aggregate to an enterprise from one person or several to another or several.

It should be taken into account that if the property is formed on the basis of contributions from the founders, then the owner is considered to be the company as a legal entity. An individual founder has only obligations and rights in relation to the property.

Important

A change in the composition of founders is not a change of owner; a change of founders can be regarded as a change of owners only in the event of a transfer of an entire enterprise from one hand to another, for example, the only founder sells property.

The concept of a change of owner is specified in more detail in the following legislative acts:

• clause 3 art. 213 of the Civil Code of the Russian Federation regarding the determination of the owner in commercial and non-profit organizations with the exception of state and municipal enterprises;
• Art. 113, 120 of the Civil Code of the Russian Federation indicates the right of ownership in unitary enterprises and institutions.

In addition, it is important to understand that this person must be the owner of all property as a whole, this takes into account the rights to state-registered real estate and material assets as well.

There is an entire article in the Labor Code of the Russian Federation that regulates the legal relationship between an employer and a subordinate when transferring property rights - Art. 75 Labor Code of the Russian Federation. At the same time, it contains separate provisions in relation to enterprises, legal entities, and other persons, for example, entrepreneurs.

Information

This document indicates the right of the new employer, in compliance with the deadlines from the moment of receipt of rights to property, to terminate the contract with the persons specified in legislative acts.

When can we talk about changing the ownership of the organization’s property?

Not a single regulatory act, including the Labor Code of the Russian Federation, contains a clear definition of the concept of changing the owner of an organization’s property. As usual, the Supreme Court came to the rescue: according to paragraph 32 of Plenum Resolution No. 2, a change is considered to be the transfer of ownership rights in relation to the organization’s property from one person to another.

There is another clarification in Art. 1 of Law No. 178-FZ. But it deals exclusively with changing the ownership of enterprises with state or municipal property through their privatization by private individuals. It is clarified that the transfer of such property must be paid.

There are cases of transfer of federal property to municipalities or constituent entities of the Federation, or from private owners to state ownership. In such situations, you need to refer to Art. 235 of the Civil Code of the Russian Federation and clause 2 of Art. 218 of the Civil Code of the Russian Federation, which defines the grounds for termination of the rights of owners and the ways of transferring these rights through the conclusion of civil purchase and sale transactions and other forms of alienation of property. According to the norms of the Civil Code of the Russian Federation, state registration of property rights becomes the starting point for the transfer of property.

Who is subject to dismissal?

Based on the above regulatory documents, it can be understood that a gap is possible within a 3-month period with the management team of the enterprise and the accountant.

Attention

Terminating a contract with other subordinates in accordance with the law is not justified, and the argument “change of owner” is unacceptable here. The dismissal of an ordinary employee is permissible only if the specialist himself refuses to submit to the new management; the contract is terminated on the basis of Art. 77 Labor Code of the Russian Federation.

The employer has the right to terminate relations with the management team and accounting department on the basis of the provisions of the Labor Code, observing the dismissal procedure - notification, deadlines, etc.

At the same time, the deadline for making such a decision must be observed - 3 months from the moment of transfer of ownership rights, but if this period has expired, it is impossible to get rid of the directorate on the basis of the transfer of property rights. In this case, you can use other reasons for breaking the contract, for example, staff reduction.

Regulatory legal acts upon dismissal due to a change of owner

Consideration of the procedure for dismissing an employee during a change of owner implies a close connection between the labor and civil codes of the Russian Federation, which explain in detail the rights and obligations of both parties.

Article 75.81 of the Labor Code of the Russian Federation presents all categories of employees who are subject to dismissal upon a change of ownership and specifies the time frame for resolving the issue that has arisen. The Civil Code provides for the consideration of disputes between two parties during the procedure.

An important aspect when transferring property into private ownership is the Law “On Privatization dated December 21, 2001 No. 178 FZ. This provision is necessary when considering a possible dispute over ownership.

When resolving labor disputes, it is necessary to submit the Supreme Court Resolution No. 2 of March 17, 2004, which contains all the necessary information on the legality of the procedure in accordance with the law.

Important

Dismissal of an employee upon a change of owner is impossible without a legal basis prescribed in the current legislation of the Russian Federation. If there is no basis, the procedure will be carried out in violation of the law.

Who can't be fired

In addition to the deadlines, it is important to take into account certain nuances in which the dismissal of even those specialists who are allowed to be paid according to the position is unacceptable, these are:

• a mother of a child under 14 years of age raising him or her independently or a mother holding a disabled child;
• mother of a child under 3 years old;
• pregnant woman;
• guardian of an orphan;
• the sole breadwinner of a family with a young child or a disabled child.

Important

You should also take into account the current position of the subordinate - temporary disability, being on vacation.

Step-by-step instructions for dismissing an employee

It should be recalled that the calculation based on clause 4 of Art. 81 is possible only in the event of a transfer of rights to the property as a whole; if there has only been a change in the subordination of the organization, then this action is impossible.

If all the standards are met and dismissal is permissible, since the owner does not need this specialist, it is necessary to notify the employee initially.

Attention

Before this, it is important to analyze what position can be provided to him in return - give preference to the place that corresponds to the specialist’s qualification level, if there is no such vacancy available, you can offer another place, but in any case the procedure must be followed.

Having received an offer to move to another workplace, a candidate for dismissal has the right to use one of the options:

• refuse the manager's transfer in writing followed by dismissal;
• agree with the proposal and move to a new place in accordance with the relevant order of the manager on the transfer.

Attention

If you agree to the position, an additional agreement to the existing employment contract is signed with the employee.

Otherwise, if this stage of dismissal is ignored, the calculation will be considered illegal and the employee will be able to challenge it in court.

When a decision is made to pay off unnecessary people, they are given a notice that must contain all the main points. According to the law, the document does not have a unified form, but it is important to enter the following data into it:

• Company name;
• employee data;
• the exact date of transfer of property rights;
• reference to legislative acts on the basis of which termination is possible;
• date of exact calculation;
• list of existing vacant positions at the enterprise.

The document is drawn up in 2 copies - one for the enterprise, the employee will sign in it, and after dismissal it will be added to the personal file and will be kept at the enterprise for 75 years, the other will be given to the employee.

Attention

If an employee refuses to sign, a report must be drawn up about this case with the signatures of several eyewitnesses of the refusal.

Next, an order is issued for the enterprise, with instructions for the personnel and accounting departments to prepare all the necessary documents and payslips.

On the last working day, the employee must be given all the necessary documents and payment funds.

Registration of the dismissal procedure

Important

Dismissal can be carried out no later than 3 months from the date of change of ownership of the organization’s property.

The procedure for dismissing an employee when there is a change of owner has a certain algorithm in accordance with the norms of the Labor Code of the Russian Federation:
• issuing a written notice to the employee about the upcoming termination of the employment relationship (not a mandatory item, since the Labor Code of the Russian Federation does not establish the employer’s obligation to notify employees in advance about the termination of the employment contract);
• issuance of a dismissal order, which is signed by the employee and the new head of the enterprise, as well as by an employee of the human resources department;
• full settlement with the dismissed employee and payment of all necessary monetary compensation;
• making an entry in the work book and saving a copy in the archive of the enterprise;
• issuance of a work book and a special journal entry to record the movement of documentation.

For your information

The new owner of the enterprise may, if desired, offer the dismissed employee a transition to a new position, subject to the consent of the employee.

Enrollment in labor

In the process of preparing documentation for the dismissal of an employee, a HR specialist must prepare all the necessary papers regarding the dismissal of the employee - make entries in the personal file, personal card, and on the last working day, make an entry in the work book about the dismissal. It is extremely important to comply with all filling standards and legislative acts in carrying out this process.

When leaving due to a change of ownership, the following entry must be made:

• record number in the document;
• full date of dismissal;
• information about the process itself with reference to legislative acts;
• indicate the details of the order for termination of the employment relationship.

If an error was made during the filling process, it cannot be corrected; you must indicate that the entry is incorrect and add a new one below.

Sample

Labor relations during a change of ownership and reorganization

In judicial practice, a change of owner of an organization is understood as a transition (transfer) of ownership of the organization’s property from one person to another person or persons, in particular: during the privatization of state or municipal property, that is, during the alienation of property owned by the Russian Federation, constituent entities of the Russian Federation Federation, municipalities, in the ownership of individuals and (or) legal entities (Article 1 of the Federal Law “On the privatization of state and municipal property” dated December 21, 2001 N 178-FZ, Article 217 of the Civil Code of the Russian Federation); when transferring state enterprises to municipal ownership; when transferring a federal state enterprise to the ownership of a constituent entity of the Russian Federation, and vice versa. Thus, under a change of owner of the organization’s property, which entails those provided for in Art. 75 of the Labor Code of the Russian Federation, the consequences are understood as the transfer of ownership of the entire organization to other persons.

In accordance with Part 1 of Art. 75 of the Labor Code of the Russian Federation, when the owner of the organization’s property changes, the new owner, no later than three months from the date of the emergence of his ownership rights, that is, from the moment of state registration of the transfer of ownership rights to the new owner, has the right to terminate the employment contract with the head of the organization, his deputies and the chief accountant. In this case, clause 4 of Art. is used as the basis for dismissal. 81 of the Labor Code of the Russian Federation, regulating dismissal at the initiative of the employer. Such dismissal can only take place within three months, calculated from the moment of state registration of the transfer of ownership of the entire organization. The transfer of ownership may become the basis for termination of employment relations at the initiative of the new employer only with the head of the organization, his deputies and the chief accountant of the organization. This ground for dismissal cannot be applied to other employees.

In Part 2 of Art. 75 of the Labor Code of the Russian Federation establishes the rule that a change in the owner of an organization’s property is not grounds for the dismissal of other employees at the initiative of the employer. To continue labor relations with other employees when the owner of the organization’s property changes, compliance with any additional conditions is not required. In this case, by virtue of the requirements of the law, the new owner is recognized as a party to the employment contract, to whom the rights and obligations under the employment contracts concluded by the previous employer are transferred. In this case, a record of a change in the party to the employment contract is made in the work book of the organization’s employees in accordance with Art. 75 of the Labor Code of the Russian Federation from the moment of registration of the transfer of ownership of the organization’s property. However, the employee has the right to refuse to continue the employment relationship with the new owner of the organization. Such refusal must be expressed in writing. After receiving a written statement from the employee about his refusal to continue the employment relationship, the new owner of the organization has the obligation to terminate the employment contract on the basis of clause 6 of Art. 77 of the Labor Code of the Russian Federation in connection with the employee’s refusal to continue working when the owner of the organization’s property changes. In Art. 75 of the Labor Code of the Russian Federation does not regulate the period during which an employee has the right to refuse to continue employment relations with the new owner of the organization. In this case, it is possible to apply the principle of procedural analogy and use as a guideline the period set for the new owner to dismiss the head of the organization, his deputies, and the chief accountant of the organization, that is, a three-month period from the date of registration of the transfer of ownership to the new person. During this period, the owner is recognized as new. Therefore, within the specified period, the employee has the right to apply for dismissal under clause 6 of Art. 77 Labor Code of the Russian Federation. After receiving such an application, the new owner has the obligation to carry out dismissal on this basis within the period specified by the employee, if it does not go beyond the limits established in Part 1 of Art. 75 of the Labor Code of the Russian Federation for a three-month period. After three months from the date of transfer of ownership, the employee may resign at his own request in compliance with the requirements provided for in Art. 80 Labor Code of the Russian Federation.

Measures to reduce the number or staff of an organization's employees can be started by the new owner only after the transfer of ownership, that is, after state registration of the emergence of ownership of the new person. Carrying out these activities before the specified date means that they were started by a person who does not have the authority to carry them out. Therefore, the actions of this person must be declared illegal.

In Part 5 of Art. 75 of the Labor Code of the Russian Federation states that when the jurisdiction (subordination) of an organization changes, as well as during its reorganization (merger, accession, division, spin-off, transformation), labor relations continue with the consent of the employee.

In connection with the above, a change in the jurisdiction (subordination) of an organization, including a change in name, as well as its reorganization, during which new legal entities arise, are not independent grounds for termination of an employment contract. This norm does not directly regulate the legal consequences of the transfer of structural units from one organization to another. However, there is no such basis for dismissal of employees as the transfer of a structural unit to another organization in the current legislation. In this case, a reduction in the number or staff of the organization’s employees also does not occur, since the structural unit moves from one employer to another. Consequently, jobs do not disappear without a trace, as happens when the number or staff of an organization is reduced, they become the responsibility of another employer, to whom the structural unit is transferred. In connection with the above, Part 5 of Art. should be applied by analogy to situations involving the transfer of structural units. 75 of the Labor Code of the Russian Federation, which obliges to maintain labor relations in the presence of a new employer, that is, when jurisdiction (subordination) changes and when the employer is reorganized. To maintain the employment relationship in the above situations, the employee’s consent is required. This consent can be expressed either by silent continuation of work with the new employer, or by submitting a written application. It should be taken into account that the law does not require representatives of the employer to receive written statements agreeing to continue the employment relationship. Thus, the preservation of labor relations when the jurisdiction (subordination) of an organization changes, during its reorganization, or when structural units are transferred from one organization to another follows from the proof of two legally significant circumstances. Firstly, the presence of a new employer, to whom the rights and obligations under the employment contracts concluded by the previous employer are transferred, in connection with the transfer of all or certain functions of the organization to him. Secondly, the presence of the employee’s will to continue the employment relationship, which can be expressed by continuing to work for the new employer. Proof of the above circumstances allows a decision to be made on the obligation of the new employer to maintain labor relations with employees.

In Part 5 of Art. 75 of the Labor Code of the Russian Federation talks about the continuation of labor relations with the employee. In this regard, an entry in the employee’s work book about a transfer to work for a new employer will be illegal in the situation under consideration. In Art. 77 of the Labor Code of the Russian Federation lists the grounds for termination of an employment contract, including transfer to work with another employer. Termination of an employment contract means the end of the employment relationship. Whereas in part 5 of Art. 75 of the Labor Code of the Russian Federation talks about the continuation of labor relations. Consequently, in the employee’s work book on the basis of Part 5 of Art. 75 of the Labor Code of the Russian Federation, it is necessary to make an entry about a change in the jurisdiction (subordination) of an organization or about its reorganization or about the transfer of structural divisions (individual functions of the organization) to another organization, that is, about a change in the employer on the grounds provided by law.

An employee has the right to refuse to continue the employment relationship when the jurisdiction (subordination) of the organization changes, its reorganization, or when certain functions are transferred to another organization. Such refusal must be expressed in writing. However, the employee may refuse to go to work for the new employer. And in this case, the new employer has an obligation to dismiss the employee under clause 6 of Art. 77 of the Labor Code of the Russian Federation in connection with refusal to continue employment relations with a new employer.

The legislation does not regulate the deadline for submitting an application to a new employer with a request for dismissal on the basis of clause 6 of Art. 77 Labor Code of the Russian Federation. Apparently, in this situation, by procedural analogy, the three-month period established in Part 1 of Art. 75 Labor Code of the Russian Federation. Within the meaning of this norm, during this period the employer delves into the essence of what is happening in the organization, that is, it is considered a new employer. Obviously, the employee also has the right to assess his ability to continue his employment relationship within three months from the date he has another employer.

After this period, the employer loses the status of a newcomer. After which the employee can resign of his own free will, and not due to a change in employer. The employee’s refusal to continue the employment relationship within three months from the date of the appearance of the new employer, either by filing a letter of resignation under clause 6 of Art. 77 of the Labor Code of the Russian Federation, and in case of absence from work, the new employer becomes obligated to dismiss the employee on the specified grounds. However, before issuing an order for dismissal if the employee does not show up for work, the employer’s representatives are obliged to find out that it is due to the employee’s lack of desire to continue the employment relationship.

Textbook “Labor Law of Russia” Mironov V.I.

Payments and compensations

If an employee is dismissed by decision of the employer, he has the right to severance pay in accordance with the amount of average monthly earnings.

Moreover, such compensation in the event of dismissal of management personnel on the basis of Art. 181 Federal Law No. 56 of 2014 “On amendments to parts of the Labor Code of the Russian Federation regarding restrictions on severance pay and other payments upon dismissal of individual employees” is paid in three times the employee’s average monthly earnings, except for cases provided for by this Code.

In addition, the employer must pay the earned salary for the last month of work of the manager and accountant, as well as compensation for unpaid vacation days.

Additionally

Also, a dismissed person will be able to receive sick leave if the illness occurred in the first month after payment.

Compensation upon dismissal

Dismissed employees referred to in Art. 75 of the Labor Code of the Russian Federation, receive compensation in the amount calculated based on average earnings for the last 3 months in accordance with Art. 181 code. Its maximum amount is not limited by regulations, and therefore any amount exceeding the minimum established by law can be determined in a collective or employment agreement with these employees. These compensations are not included in the tax base for income tax on the basis of clause 3 of Art. 217 Tax Code of the Russian Federation.

IMPORTANT! If an employer, wanting to avoid paying compensation, forces an employee to resign of his own free will (for example, under the threat of dismissal for negative reasons), he risks being subject to administrative punishment under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, and also if such dismissal is declared illegal, incur additional financial expenses - in addition to compensation in such a situation, he will have to pay legal costs and compensate the employee for moral damages.

Employer's liability

If the employee’s rights have been infringed, he has the opportunity to go to court in compliance with the deadlines in accordance with Part 1 of Art. 392 of the Labor Code of the Russian Federation, which states that in case of dismissal, filing a claim must take place within a month from the date of receipt of the work book.

Important

When an employee achieves justice in court, the employer will bear administrative liability in accordance with Art. 5. 27 Code of Administrative Offences.

This article is used in many cases of unlawful action on the part of the owner in the process of dismissing an employee. According to its points, the employer faces penalties in the amount of 1,000 - 5,000 rubles, the enterprise also falls under penalties and pays a fine of 30,000 to 50,000 rubles.

Payments

Upon dismissal, the employee receives the following payments:

• wages for the period worked. Calculated in proportion to the number of days actually worked based on average daily earnings;
• compensation for unused vacation days;
• bonuses based on the interest rate specified in the employment agreement;
• severance pay for the period of employment in the amount of one monthly salary (paid for two months);
• the employment contract may also provide for other payments.

The rules for issuing a child tax deduction in 2021 are described in detail in our article. You will learn how to force your employer to pay your legal salary by reading our article. How does a nominal salary differ from a real one? The differences are described in detail here.

Is it possible to challenge dismissal?

There are many examples of unlawful actions by an employer when he, abusing his rights as an owner, fires everyone, including the working class.

Information

For example, due to a change of ownership, the commercial director or store manager is dismissed. In this case, it is unlawful, since these positions are not related to the management of the organization and the court, in any case, when considering such a case, will decide to change the wording in the labor contract. Then the person whose rights have been infringed has the right to be reinstated at his previous place of work.

Also, the reasons for wrongful dismissal that can be challenged include:

• there was no change of owner, only a change of subordination of the enterprise;
• the dismissal procedure was not followed;
• the employee does not have a status according to which he can be dismissed for this reason;
• the employee had immunity - young children, etc.

In the same way, an employee will be able to appeal the employer’s decision if the deadlines for dismissal by the owner’s decision were not met.

Important

In any of the unlawful cases, the person whose rights have been infringed has the right to challenge the decision to dismiss in court, and the employee will be reinstated at his previous place of work.

Categories of employees subject to dismissal

The concept of a change in the owner of an organization does not have direct legal grounds for terminating an employment relationship. The new owner has the right to use Art. 75 of the Labor Code of the Russian Federation and dismissal of workers in such positions:

• head of the enterprise;
• assistant managers;
• Chief Accountant.

Important

The above list of positions subject to dismissal is final, therefore, in case of violation of the law, the injured party has the right to file a claim in court.

In some cases, employers often fire employees who are not listed in the above list, therefore, when the case is considered in court, a positive satisfaction of the claim will be in favor of the dismissed employee (decision No. 33-175-15 of 01/12/2015).

For your information

When there is a change of owner, employees of the relevant enterprise have the right to dismiss at their own request due to changed circumstances (Clause 6, Article 77 of the Labor Code of the Russian Federation). The procedure is carried out according to the usual algorithm by submitting an application to the personnel department.