Compensation for early dismissal with a reduction in insurance premiums

20.06.2019

1558

6 min.

In the modern dynamic world of a market economy, no company is immune from risk. The financial losses of the company are felt by its employees. Often, in order to get out of the crisis and prevent bankruptcy, employers decide to optimize losses by reducing the number of workers. The legislator protects persons who find themselves in such a situation by regulating the provision of benefits. Including if the employee decides to end the employment contract earlier than the agreed date due to impending departure. Below is early dismissal due to staff reduction: step-by-step instructions.

Regulatory basis for early termination of a contract during layoffs

Termination of employment relations with the employer due to a decrease in the number of people employed in the company is carried out on the basis of the provisions of clause 2 of Art. 81 Labor Code of the Russian Federation. When deciding to reduce the company's staff, the personnel to be dismissed are warned 2 months before the date of termination of the contract. At the same time, for seasonal personnel this period is reduced to 7 days, and for a fixed-term contract - 3 days.

Attention

At the same time, Art. 180 of the Labor Code of the Russian Federation is allowed by decision of the employer, but with the consent of the employee, termination of employment relations before the expiration of the specified period.

For a long time, disagreements arose among experts due to the wording of this paragraph of the article.

Clarity was brought to this issue after the appearance of the Constitutional Court of the Russian Federation of September 29, 2015 No. 1881-O, which stated that early termination of a contract at the initiative of the worker is not prohibited and is quite possible in the absence of objections from the employer

Taxation of payments upon staff reduction with personal income tax and insurance premiums

As for the compensation payments due to an employee upon staff reduction, in accordance with clause 3 of Art. 217 are not subject to personal income tax on all types of compensation payments established by the legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government (within the limits established in accordance with the legislation of the Russian Federation), related, in particular, to the dismissal of an employee.

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According to paragraphs. 1 clause 1 art. 223 of the Tax Code of the Russian Federation, when receiving income in cash, the date of actual receipt of income is defined as the day of payment of income, including the transfer of income to the taxpayer’s bank accounts or, on his behalf, to the accounts of third parties. Let us remind you that according to clause 2 of Art. 226 of the Tax Code of the Russian Federation, the organization from which or as a result of relations with which the taxpayer received income is obliged to calculate, withhold from him and pay the amount of tax.

Prerequisites for terminating the contract before the end of the notice period

The initiator of early dismissal during layoffs can be either the person being laid off or the employer who previously provided him with work. The desire of an individual to terminate the contract before the end of the allotted period of notice of dismissal, as a rule, is explained by the fact that he has already found a new job and the potential employer is not ready to wait so long for him.

In this case, he notifies the company of his intention and, in the absence of objections from the current employer, he is fired due to staff reduction.

Information

If an agreement fails, he always has the opportunity to write a statement of his own free will, without receiving the amounts due to him according to the law.

For an employer, there are many more reasons for offering a redundant person to vacate his or her job early:

Hostile relationships and excessive conflict of the dismissed person;
There is a need to quickly release the occupied space being reduced for other production purposes;
The need for accelerated staff reduction in connection with the upcoming merger, reorganization, etc.

If the initiative comes from the employee, then he can express it both in written and oral form. The subsequent termination of the contract in connection with the reduction and the issuance of the corresponding order will, in fact, be an expression of consent by the action on the part of the employer.

In this case, no additional written agreements are required. If early dismissal is the employer’s idea, he needs to notify the worker in writing against signature, and only after that can he issue a dismissal order due to the reduction.

When is early dismissal acceptable?

According to the law, the procedure for reducing staff or number of employees is as follows.

The employer issues a layoff order and notifies the trade union (if there is one) and the employment service.
He determines (individually or with the help of a commission) which of the employees will be laid off.
Employees, upon signature, are familiarized with the dismissal order due to reduction and are warned about the date of dismissal.
When the time comes, the head of the organization, by his order, dismisses the employees being laid off.

However, Art. 180 of the Labor Code of the Russian Federation provides that the employer has the right to dismiss an employee even before the warning period has expired.

At the initiative of the employer, but with the written consent of the employee.
According to the employee. The Labor Code of the Russian Federation does not provide for the possibility of filing such an application, however, it does not prohibit it. Moreover, the definition of the Constitutional Court of the Russian Federation No. 1881-O of 2015 directly establishes that the employee has the right to submit this application.

IMPORTANT: Even if an application is submitted, the employee must still be dismissed precisely due to layoff, and not at his own request.

Key points related to early redundancy

Initially, both parties to the employment contract are notified of the upcoming headcount optimization. The severance of an employment relationship before the deadline for working out is preceded by several mandatory stages:

The company issued an order about the upcoming reduction, and employees were given notice that they would be fired in 2 months.
Those being dismissed sign the appropriate written notices and submit them back to the personnel department.
Attention
If any of the personnel refuses familiarization, a certificate of refusal to familiarize is drawn up, which also remains in the personnel service.

The sequence of actions for early dismissal should then be as follows:

Informing one party of an employment contract to the other party of its intention. The law does not establish a clear form for such notification. For this, a statement written by the employee or a written notice drawn up by the employer and handed to him against signature can be used.
Reaching an agreement on a future early separation.
Attention
In the event of an initiative on the part of the employer, it is advisable to formalize in writing the consent received from the hired personnel to terminate the contract before the end of the two-month period. It can additionally describe the conditions under which the reduction will be made, in particular all the payments due to the staff.
Drawing up a dismissal order due to layoff before the end of the notice period. Such a document can be generated either in any form or using the standard T-8 form, approved by Decree of the State Statistics Committee of the Russian Federation No. 1 of 01/05/2004. The person being reduced must be familiarized with the specified document against signature. At the same time, a certificate is drawn up - a calculation of the due accruals in connection with the dismissal. The necessary entries are made in the employee’s work book.
Payment of all due components of wages, including payment for time worked, as well as those established by legal acts in the event of a reduction in guarantees and compensation. All specified amounts must be issued to the employee strictly on his last working day.
Issuance of all documents required by the employee upon dismissal. A work book and a certificate of earnings in form 182 N are required. Moreover, based on a written application from the employee, he may be issued other documents related to employment with a former employer.

Important

After this, the dismissal procedure can be considered completed.

What to write in the work book when terminating an employment contract early

Based on the logic of the content of the procedure itself, it is necessary to enter into the work book as a reason for termination of labor relations a reduction in the number/staff of the organization (clause 2, part 1, article 81 of the Labor Code of the Russian Federation). Approximate content could be as follows:

“Dismissed due to a reduction in staffing levels on the basis of clause 2, part 1 of Art. 81 Labor Code of the Russian Federation."

Next to it is the number and date of the dismissal order, as well as the date the entry was made, the signature and transcript of the signature of the inspector who made the entry in the book. If the company has a seal, it is additionally expected to be affixed. After the specified entry is made, the person who quits must receive the book in hand.

List of payments due upon early dismissal

Personnel who resign due to staff optimization, but before the end of the work period after being informed of the termination of the employment contract, are entitled to the same payments as in the case of termination of employment strictly after the end of a two-month period. The composition of the amounts that must be paid to the employee is as follows:

Payment for actual work performed on days worked in the month of termination of the employment contract.
The employee is paid compensation in the amount of the average salary for the time period remaining until the end of the working period after notification of dismissal (clause 3 of Article 180 of the Labor Code of the Russian Federation).
Severance pay in the amount of average monthly salary (paid within 2 months).
If an employee registered at the employment center within 2 weeks after termination of the contract and was unable to conclude an agreement with the new employer, he is entitled to be paid the average salary for the third month after dismissal (Article 178 of the Labor Code of the Russian Federation).

How to calculate additional compensation for early dismissal

According to Part 4 of Art. 178 of the Labor Code of the Russian Federation, an employment contract or collective agreement may provide for additional cases of payment of severance pay, as well as establish increased amounts of severance pay. In refusing to satisfy the claim, the court proceeded from the fact that agreement on termination of employment relations No. 30 dated April 21, 2021 is not an additional agreement to the employment contract concluded between Dombrovsky S.B. and OJSC Avtomatika, since it contains only conditions for termination of the employment contract, which does not comply with the provisions of Art. Art. 56, 57 of the Labor Code of the Russian Federation. However, in accordance with Art. 5 of the Labor Code of the Russian Federation, labor relations and other relations directly related to them are also regulated by collective agreements, agreements and local regulations containing labor law norms. According to Art. 9 of the Labor Code of the Russian Federation, in accordance with labor legislation, the regulation of labor relations and other relations directly related to them can be carried out by concluding, amending, supplementing collective agreements, agreements, and employment contracts by employees and employers. Taking into account the above, agreement on termination of labor relations No. 30 dated April 21, 2021, concluded between Avtomatika OJSC represented by the general director and the plaintiff during the validity period of employment contract No. 20-s dated May 5, 2021, is an act containing norms labor law, and, by virtue of Art. 11 of the Labor Code of the Russian Federation, all employers (individuals and legal entities, regardless of their organizational and legal forms and forms of ownership) in labor relations and other directly related relations with employees are obliged to be guided by the provisions of labor legislation and other acts containing labor standards rights. Under such circumstances, the basis for the recovery of funds from JSC Avtomatika in favor of the plaintiff is the failure to fulfill the defendant’s obligation to make a voluntary monetary payment, as stated in the agreement on termination of employment relations No. 30 dated April 21, 2021 . Thus, when making decisions, the courts did not apply the law that was to be applied, namely, Articles 5, 9, 11 of the Labor Code of the Russian Federation. Under such conditions, the court decision cannot be recognized as legal and is subject to cancellation .

No, because you have the right to demand compensation in this case in the amount (or greater) that is required by law. If you refuse to accrue it, you, in turn, can refuse to sign the agreement.

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Possible violations by the employer upon early termination of the contract

One of the most common tricks on the part of the employer during dismissal is pressure on the employee to formalize the early termination of the employment relationship at his own request or by agreement of the parties.

In this case, the company will be able to save on additional payments, because no compensation is provided for the employee for such reasons for parting with the employer.

Attention

The employee should clearly write in his resignation letter the conditions under which he agrees to terminate the contract and what payments he is entitled to. Thus, he will protect himself from abuse by the employer.

In addition, the organization should understand that any pressure on an employee to make a decision beneficial to the company is illegal and can lead to negative consequences. In particular, forcing the employee to terminate the contract at his own request, through psychological influence on the employee, will most likely lead to litigation.