28.08.2019
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5 minutes.
The unsatisfactory financial condition of the company, as well as negligence in doing business, may be the reason for the forced liquidation of the enterprise or the reduction of vacancies. The legislation has developed an article whose provisions allow employees of the organization to defend their own rights and freedoms. In case of unscheduled dismissal of individuals on the initiative of the board of founders, citizens are entitled to payment of subsidies.
Article 180 of the Labor Code of the Russian Federation. Guarantees and compensation to employees during the liquidation of an organization and layoffs
Termination of the company's activities and reduction of staff are grounds for dismissal at the initiative of the employer. When liquidating an enterprise or reducing the number of personnel, the employer must provide benefits to employees. Article 180 of the Labor Code regulates the manager’s obligation to offer a citizen a new equivalent vacant position. This provision does not apply to situations of termination of the company’s activities with the transfer of ownership rights to third parties, changes in jurisdiction and reorganization. Guarantees and compensation are provided to all dismissed citizens: pregnant women, minors, women with small children, single mothers.
The concept of liquidation, staff and headcount reduction
Legal termination of a company's activities can be carried out at the initiative of the board of founders or government bodies. Voluntary and forced reasons for liquidation of an enterprise:
- unsatisfactory financial condition;
- lack of funds to pay off debt;
- expiration of the company's existence;
- transfer of the company to another field of activity;
- violation of the law when doing business;
- lack of license;
- conducting illegal activities.
Dismissal during the liquidation of an organization is not a voluntary desire of employees or a consequence of the imposition of a disciplinary sanction. Cancellation of the agreement at the initiative of the manager obliges compliance with paragraphs 180 of Art. Labor Code of the Russian Federation. The legislation defines the procedure for terminating a company's activities with subsequent termination of the contract with employees:
- Decision-making by the board of founders.
- Drawing up a protocol with subsequent notarized registration.
- Notification of the tax service, trade union about the liquidation of the organization.
- Notifying employees.
- Informing the state employment service.
- Search for vacant positions for dismissed personnel.
- Issuance of orders.
- Preparation of settlement documents.
- Registration of work books.
- Payment of compensation.
Staff reduction implies the abolition of structural divisions of the enterprise. Renaming or moving certain positions is not grounds for termination. The reasons for the reduction in the number of employees are a decrease in production volume, an increase in taxes, changes in the management system, reorganization, and the introduction of innovative technologies. The procedure for abolishing jobs does not apply to pregnant women, women on maternity leave, single mothers, minors, guardians of seriously ill children, employees on sick leave or on annual leave, military disabled people, and the only breadwinners in the family.
Attention! Specialists with a high level of qualifications and extensive work experience also have a priority right.
Procedure for warning employees
Part 2 of Article 180 of the Labor Code of the Russian Federation obliges the manager to promptly notify citizens of the upcoming dismissal. The minimum notice period is 2 months. The director of the company must warn employees who have entered into a fixed-term contract about the termination of the organization’s activities 3 days in advance, and seasonal employees - a week in advance. Before issuing an order, the employer is obliged to inform individuals in writing. The citizen must personally review the notification and autograph the document. Basic information indicated in the notification:
- name, legal address of the organization;
- personal data, employee position;
- information about the manager;
- reason for dismissal;
- number, extract from the order.
A person has the right to draw up in any form an act of refusal to sign a warning in front of two witnesses. If the employee is absent at the time of drawing up the notice, the manager is obliged to hand over the legal paper to the post office. Part 3, Article 180 of the Labor Code of the Russian Federation regulates the employer’s right to terminate an agreement earlier than the established period only with the written consent of the employee with the payment of additional monetary compensation.
Staff reduction measures
The boss can reduce the number of workers at the enterprise on his own initiative. A manager usually takes such a step if the production process has been automated or the economic situation in the organization has worsened. Also, the reason for the reduction may be a decrease in the number of orders and the volume of work. The procedure for carrying out such an event consists of the following stages:
- The employer issues an order to carry out the procedure for laying off workers.
- Two months before the termination of the employment relationship, the boss is obliged to give each employee who has been laid off, regardless of their total number, a notice. It indicates the reason and date of dismissal. The employee must carefully read this document and sign it.
- If the organization has a free workplace that is suitable for the dismissed employee in accordance with his qualifications, then the director is obliged to provide it.
- If an employee does not want to move to a new position, then on the specified day an order for his dismissal is issued.
Also, two months before the upcoming layoff, the boss must notify the trade union and the labor exchange.
Seasonal workers are given seven days notice, and temporary workers three days notice. If the employee does not want to sign the document, then in this case an act is drawn up. It describes the current situation in detail.
The following categories of working citizens are not subject to layoffs:
- pregnant women;
- young mothers on maternity leave with children under three years old;
- single mothers who are raising disabled children under 18 years of age;
- workers injured in this organization.
Also, employees who are the only workers in the family and raising three children under age cannot be laid off. Highly qualified employees also receive an advantage over all other employees in the organization.
Responsibilities of the employer during layoffs and liquidation
The Labor Code determines the actions of the manager when dismissing employees due to the termination of the enterprise's activities or a decrease in the number of personnel. The employer must promptly warn citizens about unscheduled terminations of contracts. The main responsibility of a company director is to offer employees new vacant positions. When reducing staff, the manager must find for an individual an equivalent specialty in a given institution or a lower position.
It is important to know! Cancellation of the contract occurs if the employee refuses to be transferred to another position. Article 180 of the Labor Code regulates the employer’s obligation, in the event of a mass layoff, to notify the trade union organization and take measures determined by the collective agreement or internal regulations.
Guarantees and compensation
Upon termination of a contract, the manager must pay severance pay to employees. Additional monetary compensation upon cancellation of the agreement due to liquidation of the enterprise:
- income for the period worked before dismissal;
- payment of unused days of annual leave;
- additional compensation for early termination of an employment contract;
- severance pay in the amount of average monthly profit;
- repayment of debts, including unaccrued bonuses, payment for business trips.
Citizens who have entered into a fixed-term contract of up to 2 months, as well as external part-time workers, do not receive additional funds. Seasonal workers are paid severance pay, the amount of which is the average earnings for 2 weeks.
If, after dismissal, the employee does not find an equivalent position, the manager is obliged to pay compensation within 60 days based on a written application and a copy of the work record book. The subsidy includes salary, bonuses, allowances, financial assistance for the birth of a child, death of a close relative, and retirement. The payment period can be increased to three months upon presentation of a certificate from the employment center confirming timely registration and the absence of vacancies. Severance pay before subsequent employment is not provided to pensioners who, by law, do not have the right to register with the labor exchange. The provided accruals are not subject to personal income tax or insurance premiums.
Citizens have the right to receive temporary disability benefits if a deterioration in their health status was recorded within 30 days after termination of the contract. Upon liquidation of an enterprise, compensation is calculated by the Social Insurance Fund based on the documents presented:
- sick leave certified by a medical professional;
- income certificate for calculating benefits;
- paper confirming insurance experience;
- written statement.
Pregnant women and women on maternity leave have the right to receive child care benefits within 12 months after the liquidation of the enterprise. To calculate compensation, employees must register with the employment service. Funds are paid by the territorial body of social protection of the population. The benefit is due upon presentation of a written application, a certificate of incapacity for work, a antenatal clinic certified by a doctor, an extract from the work record book, or a certificate of recognition of the citizen as unemployed.
What if due to layoffs you were fired not 2, but, for example, 5 months after the warning?
In order to warn the company’s specialists about the impending reduction, Art. 180 of the Labor Code of the Russian Federation gives the employer 2 months. But this does not mean at all that after an employee has received a warning, he must be fired within 2 months. The Labor Code of the Russian Federation does not contain a corresponding imperative norm.
So a specialist who has not been laid off 2 months after receiving a warning cannot relax.
The company has the right to terminate the employment contract with him even after the end of the specified period. At the same time, the courts proceed from the legality of dismissal, which laid-off workers often unsuccessfully try to challenge (rulings of the Moscow City Court dated November 6, 2015 in case No. 33-40687/2015, dated February 12, 2014 in case No. 33-6931/2014, etc.). You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
Termination of labor relations
There can be many reasons for early termination of cooperation.
Among the most relevant are the following:
- Changes in the structure of the legal entity and the form of activity - as a result, the reorganized legal entity lost the need to have a specific staff unit.
- Deterioration of the financial situation - optimization measures include a reduction in staff.
- Complete liquidation of an enterprise - the founder of a legal entity may decide that it is inappropriate to continue economic activities or achieve the goals for which the enterprise was created.
This list of reasons is not exhaustive, since making personnel decisions relates to the rights of the management of a legal entity.
We recommend you study! Follow the link:
Deadlines for filing a tax return in 2021 for individual entrepreneurs
The employer is responsible for making the final payment, as well as paying due compensation to the dismissed employee. The reason for termination of the TD is not important.
Stages of dismissal
The employer performs a number of sequential actions when carrying out the employee reduction procedure:
- change in staffing. At the same time, it is impossible to eliminate the position and immediately re-establish it;
- preparation of an order;
- creation of a special commission whose powers include carrying out measures to reduce employees;
- familiarization of dismissed employees with the order;
- actual dismissal.
Not only the dismissed employees, but also the representative of the trade union organization, as well as the territorial employment center are notified in advance of the upcoming reduction. The notice period is 2 months before dismissal. If the reduction is massive, the period increases to 3 months.
Violation of the current regulations on carrying out measures aimed at reducing staff is grounds for legal proceedings. Ultimately, the court may declare the actions illegal and reinstate the dismissed employee with the obligation to pay compensation for days absent from work.
It is important to take into account the nuances of the employee reduction procedure provided for in 2021 by the law of the Russian Federation, since the slightest deviation from the established regulations will lead not only to the obligation to restore the violated right to work, but also to the imposition of penalties, up to the complete suspension of the enterprise’s activities.
