Article 75. “Labor Code of the Russian Federation” dated December 30, 2001 N 197-FZ (as amended on December 29, 2020)

What is considered a change of ownership?

The Labor Code does not specify the concept of “change of owner”. There is no special article in the Civil Code of the Russian Federation. Therefore, representatives of private business often believe that the transfer of the right to dispose of the property of an organization as a result of the acquisition of the authorized capital of this organization is the transfer of ownership.

But this opinion is wrong.

In accordance with the content of Art. 213 of the Civil Code of the Russian Federation, the owner of the property of a business company is the company itself. That is, apply the standards of Art. 209 and 235 of the Civil Code of the Russian Federation not to the economic entity itself, but to the ownership of its authorized capital. The transfer of the authorized capital of an organization from one person to another does not constitute a transfer of ownership of the property of this organization.

What did the legislators have in mind when drawing up the provisions of Art. 75 Labor Code of the Russian Federation?

The Supreme Court of the Russian Federation finally put an end to this issue in Resolution No. “On the application by courts of the Labor Code of the Russian Federation” dated March 17, 2004 No. 2.

Under a change of owner for the purposes of Art. 75 of the Labor Code of the Russian Federation should only be understood as events leading to a change in the form of ownership:

• transfer of property in federal ownership, property of constituent entities of the Russian Federation and municipal property into private ownership (for example, as a result of privatization);
• reverse transfer of property from private property to state property (for example, during nationalization);
• transfer of state property between different levels (for example, from subject property to federal property).

REMEMBER! A change in private shareholders (participants) of an economic entity does not entail a change in the form of ownership of this entity for its property. Therefore, the norms of Art. 75 Labor Code cannot be applied in this case.

Cases of changes in the ownership of an organization

When studying legal acts of legislation, it is impossible to present a clear concept of a change of owner in any organization. At the same time, some provisions explain the procedure for completing the procedure:

• in accordance with the resolution of the Plenum No. 2, paragraph 32 of the Supreme Court, a change of ownership is considered to be the transfer of property rights from one person to another;
• The first article of Law No. 178 FZ implies a change of owner during the privatization of an enterprise and its subsequent transfer to private ownership. In this case, the procedure should be free of charge;
• Art. 235 Civil Code of the Russian Federation and 2 art. 218 of the Civil Code of the Russian Federation considers the process of transferring property from private individuals to the state through transactions for the alienation of property (purchase and sale).

In order to carry out the transfer of property, state registration of property is required in accordance with the norms of the Civil Code of the Russian Federation. Registration of the procedure is possible subject to compliance with the above-described legal provisions prescribed in the current legislation.

A change of owner is considered to be a change in legal entity, the concept of which is clearly defined in Art. 48 Civil Code of the Russian Federation:

• a legal entity is understood as an organization that has separate property, is responsible in court and fulfills all necessary obligations;
• mandatory registration of a legal entity in the unified state register;
• state and municipal institutions are classified as legal entities, since their founders have certain rights to this property;
• Corporate organizations are also legal entities because their members have corporate rights.

For your information

A change in the composition of the founders is not a change in ownership, therefore, in this case, the dismissal procedure is not applicable. It is important to distinguish this concept when making an appropriate decision.

What is not considered a change of owner in accordance with Article 75 of the Labor Code of the Russian Federation?

Based on the criteria for a change of ownership, one can understand why some reorganization moments in the life of an organization do not relate to a change of owner.

The key aspect here is that the organization's ownership of its property does not change.

Therefore, a change of owner does not include:

• changes in departmental subordination or type of state or budget organization (the organization’s property still remains budgetary);
• reorganization through mergers, acquisitions, divisions and transformations (the form of ownership does not change).

Dismissal during enterprise reorganization: features of dismissal in 2021 - YOUR LAWYER

Reorganization of a company always affects its entire staff. Often this procedure is accompanied by the dismissal of previous managers and a reduction in staff. The correctness of its implementation, as well as the execution of all necessary documentation for the dismissal of workers during the reorganization of the enterprise, is regulated by the regulatory legal acts of the Russian Federation.

Forms of reorganization

When an enterprise undergoes reorganization, its legal status is terminated or changed, and the new organization receives all the rights and obligations of the legal entity. A mandatory part of such an action is the completion of the production activities of one company and the formation of a new company. These changes inevitably entail the dismissal of employees.

The process itself is very complex legally, since it does not boil down to a simple transfer of powers from one enterprise to another. Article 57 of the Civil Code of the Russian Federation establishes several types of reorganization:

• Transformation. The organization is completing its production activities. On its basis, a company of a different legal type is created.
• Separation. The company ends its work, and several enterprises are founded on its basis.
• Selection. A certain part of the company’s powers is transferred to the new organization, but the previous legal entity does not cease to function.
• Joining. The enterprise ends its work, and its rights and obligations are transferred to the newly created company.
• Merger. Two or more companies merge into one legal entity. At the same time, each of them ceases to function, transferring its powers to a new organization.

All types of changes in the legal status of an enterprise are reflected in the position of specialists working in it. Some employees may be laid off, while others may change their place and work schedule. This usually entails the recruitment of new staff, as well as layoffs in connection with the reorganization of the enterprise under Article 81 of the Labor Code of the Russian Federation.

Dismissal procedure

When changing the legal form of a legal entity, it is very important to correctly terminate the employment contract with employees. The legislation provides the following grounds for the procedure:

• reduction of staff or number of employees;
• change of owner of the enterprise;
• refusal of employees to continue working due to changes in contract terms.

But some specialists are not subject to layoffs, regardless of the type of reorganization. These include:

• Employees on maternity leave. This category of workers is not subject to layoffs, and when they are dismissed due to reorganization in the form of merger of an enterprise or any other, it is necessary to correctly draw up all documents relating to these citizens.
• Women on maternity leave for children under 3 years of age.
• Specialists who are on any vacation.
• Trade union members.

In order to legally terminate an employment contract with employees, a certain procedure must be followed. It consists of the following steps:

1. Issuance of an order on the upcoming change in the legal status of the organization.
2. Issue by the manager of an order to issue written notices to all employees.
3. Drawing up additional agreements to specialist contracts, in which the employer indicates upcoming changes in the working conditions of company employees.
4. Employees who do not want to continue production activities under new conditions send appropriate applications to the organization’s personnel service.
5. The employer makes the required payments to all resigning specialists.

When registering a dismissal due to the reorganization of an enterprise in the form of a merger or other change in its legal status, the specified procedure must be followed. Its provisions are based on the requirements of Russian labor legislation, and therefore will help to avoid mistakes.

Possible mistakes

Each form of reorganization has its own characteristics of completing cooperation. But usually employers, when firing employees for this reason, make the same mistakes:

• A citizen is fired due to the absence of his position in the staffing table of the new organization. The employee can challenge such termination of the employment relationship in court, since the manager, before formalizing the dismissal, was obliged to offer the employee all available vacancies.
• The ill specialist was not properly notified of the upcoming changes.
• Documents for terminating the employee’s employment contract were drawn up despite the citizen’s refusal to sign the corresponding order. Upon the fact of refusal, you should draw up a report certified by the signatures of witnesses, and only after that continue the dismissal procedure.
• The employer issued notices to employees too late because he incorrectly calculated the end date of cooperation.
• The employer forced the specialists to resign of their own free will in order to save money on compensation payments. Employees can challenge such termination of a contract in court, but only if there is conclusive evidence.
• The dismissal of workers began earlier than measures to reduce staff or personnel.

Almost all of the listed errors can serve as the basis for legal proceedings. If the court satisfies the employee’s claim, the employer will be obliged not only to reinstate the citizen in his position and compensate him for material damage for forced absence, but also to fully pay for the moral damage caused to the employee.

Merger of an enterprise

When carrying out this form of company reorganization, the dismissal of personnel is not mandatory, since employees can get jobs in the newly formed company. But still, some conditions for carrying out production activities may change, for example:

• location of the enterprise;
• payroll methods;
• methods for calculating and paying bonuses;
• work schedule.

If an employee is not satisfied with the new working conditions, he must submit a resignation letter to his manager.

But the reason for ending the relationship in the document should indicate the specialist’s personal reluctance to continue working in connection with the reorganization of the company.

Merger of organizations

Enterprises undergoing this form of reorganization undergo a voluntary merger into a single organization. The purpose of such a merger is most often to enhance competitiveness.

There is no need to notify company personnel about such changes, since all specialists retain their jobs.

But if a citizen refuses to work in accordance with the new terms of the contract, which inevitably entails a change in the legal status of the company, then he has the right to resign.

The basis for ending cooperation in this situation should be the employee’s reluctance to work in the new organization formed as a result of the reorganization.

Staff Notification

When a company is separated, merged or transformed, a legal entity ends its production activities, which always entails the dismissal of employees.

Before this, the employer is obliged to notify all employees in writing about future changes.

The notice should be drawn up in two copies, one of which is given to the employee, and the citizen signs on the other, confirming the fact of receipt of the notice and familiarization with the information contained in it.

All employees must receive notice 2 months before the start of the reorganization. This period allows the specialist to find a new job, and the employer has the opportunity to prepare the documentation necessary for the proper dismissal of the employee.

In such a situation, the legislation exempts citizens from the mandatory two-week work period, that is, every employee who is laid off can quit earlier. At the same time, the application indicates a reduction in staff as the basis for terminating cooperation.

Compensation payments

A mandatory part of dismissing an employee is making a final payment. Thus, the employer must pay employees:

• Salary for time worked.
• Compensation for unused vacation.
• Bonuses and payments provided for in the employment contract and local regulations.
• Severance pay calculated on the basis of average monthly earnings for the last year. This amount is paid within two months after dismissal.

If an employee resigns before the start of the reorganization, the employer is obliged to provide him with additional severance pay. In addition, if the employee was not employed within two months after the termination of the relationship, then the employer must pay him for the third month. But to receive this payment, a citizen must register with the local Employment Service.

Termination of contract with the manager

It is not necessary to dismiss a director during reorganization by merger. He can be offered another leadership position in the new company, for example, executive director.

But before that, he must be notified of upcoming changes in the same way as other members of the organization’s team. Only after written notification should the manager be offered available vacancies.

The basis for terminating a contract with the management of a company is a change in the ownership of the organization’s property. After all, the new owner makes decisions about what positions will be in the company and who will occupy them.

The procedure for ending relationships with the director, chief accountant and their deputies is not much different from ending an employment contract with ordinary employees. But still there are some features in it:

• Termination of contracts with managers due to a change of owner is permitted only within three months after the reorganization of the company.
• The amount of severance pay for this category of workers exceeds the amount of the final payment for other specialists.
• All senior management affairs must be formally transferred to new employees by drawing up a transfer document. It should list all documentation received from previous employees. A fully executed deed must be signed by both parties involved in the transfer.

The new owner of the company is responsible for paying the former managers severance pay in the amount of the average monthly salary for the next three months. Since the maximum payment amount is unlimited by law, the amount can be quite large. However, it is not taken into account in the tax base when calculating income tax.

All partners and interested government agencies must be officially notified of a change in the management of the organization

• Federal Tax Service;
• Pension Fund;
• FSS;
• banks;
• counterparties.

When the owner of an enterprise changes, only the management team is subject to dismissal. This provision of law does not apply to other employees.

Reorganizing a company is a very complex process. When implementing it, many factors must be taken into account and legal requirements must be strictly observed. Violation of the provisions of any regulatory act will entail legal proceedings and holding the employer liable.

Source:

Dismissal of employees during enterprise reorganization in 2020

Citizens working in an institution, factory, firm or company are not immune from such a phenomenon as enterprise reorganization. And for this reason they may face the possibility of dismissal.

Types of reorganization

According to civil law, the following possible types of reorganization of legal entities are distinguished:

Source: https://kaleidoscope48.ru/trudovoe-pravo/uvolnenie-pri-reorganizatsii-predpriyatiya-osobennosti-uvolneniya-v-2020-godu.html

What consequences does a change of ownership entail for persons holding responsible positions in the organization?

The new owner has the right to form a new management team of the organization. For this purpose in Art. 75 of the Labor Code provides for the opportunity to terminate employment relationships with the following employees appointed by the previous owners:

• leader;
• deputy heads;
• chief accountant.

It can be noted that such formation of leadership is typical specifically for budgetary structures. This follows precisely from what legislators understood by a change of owner, and confirms the definitions of the RF Armed Forces.

In large commercial structures, when shareholders (participants) change, the change in management often affects a much larger circle of employees. Replacement is carried out according to the principles:

• the employee they want to get rid of can, by virtue of his official powers, have a significant impact on a certain area of ​​the company’s activities (for example, on financial flows);
• such an employee is appointed to his place by the former shareholders (participants).

At the same time, labor relations with these employees should be terminated on other grounds provided for in the Labor Code of the Russian Federation. Not according to Art. 75 TK.

Learn more about the grounds for terminating an employment contract by decision of the employer in the article “Termination of an employment contract at the initiative of the employer.”

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.

How does the employment relationship with the management team end when there is a change of ownership?

The new owner must decide what to do with the previous management within 3 months from the moment he acquires ownership rights. If the period of 3 months is missed, further termination of employment contracts under Art. 75 TK is impossible.

Art. 181 of the Labor Code of the Russian Federation provides for additional compensation payments upon dismissal of management personnel under Art. 75 TK. The amount of such payments under the Labor Code is set at least 3 times the average monthly income. The final amount of compensation and the procedure for its payment may be additionally established by an agreement with employees.

ON A NOTE! Payments to those dismissed under Art. 75 of the Labor Code may be more, but not less than what is required under Art. 181 TK.

The procedure for registering dismissal is similar to the procedure for dismissal due to staff reduction.

The new owner of the organization will need:

• notify the employee of the termination of his employment contract (within the time limits specified in Article 75 of the Labor Code);
• obtain written confirmation that the employee to be dismissed has read the notice;
• issue a dismissal order, with which the dismissed person must be familiarized with his signature within 3 days. If it is not possible to obtain a receipt from an employee on an order, a corresponding entry is made by the responsible person in the order itself or a separate act is drawn up;
• draw up an employee’s work book;

IMPORTANT! The reason for dismissal, which should be indicated in the entries in the work report and order, is not Art. 75 of the Labor Code of the Russian Federation, and clause 4, part 1, art. 81 of the Labor Code of the Russian Federation, because in Art. 75 of the Labor Code defines only the right of the new owner to make personnel changes after taking ownership of the property. For the exercise of this right there is a basis set out in clause 4, part 1, art. 81 Labor Code (dismissal of management upon change of owner).

• issue a personal card and/or corresponding entries in accounting registers;
• issue the employee with a work book, as well as other documents related to work, in the event of a request from the employee under Art. 62 Labor Code of the Russian Federation;
• make all payments required by the Labor Code with the dismissed person;
• if military records were kept for the outgoing employee, send the information to the military registration and enlistment office (in a form approved by the General Staff of the RF Armed Forces).

Read more about dismissals and the procedure for registering them in the article “The procedure for dismissing an employee at the initiative of the employer.”

Payments upon dismissal

The procedure for processing payments in connection with a change of owner is carried out in accordance with Art. 181 Labor Code of the Russian Federation. Upon termination of an employment contract with a manager, chief accountant or deputy. boss, the new owner is obliged to pay benefits in the amount of three months' salary (with the exception of cases provided for by law).

Also, the dismissed employee receives the rest of his salary and compensation for unused vacation.

Art. 279 of the Labor Code of the Russian Federation provides for the mandatory payment of compensation to the manager upon termination of an employment contract. The amount must be at least three times the average monthly salary.

The compensation amount does not include the following charges:

• salary balance;
• saved salary in case of business trip, vocational training or additional education;
• reimbursement of expenses incurred during business trips or moving to another region;
• compensation for all unused vacations;

Important

The manager has the right not to pay benefits if the reason for dismissal is disciplinary action for a number of reasons (violation of the Labor Code of the Russian Federation).

What consequences does a change of ownership entail for ordinary employees?

In Art. 75 of the Labor Code establishes a rule that does not allow the dismissal of ordinary employees on the initiative of the new owner.

At the same time, employees have the right to make an independent decision to leave work due to the changed situation. For such cases, the Labor Code of the Russian Federation offers a separate basis for dismissal, set out in paragraph 6 of Part 1 of Art. 77. To use it, the employee only needs to write a letter of resignation indicating the current reason.

In addition, the new owner must inform all employees about the changes with personal notices, which should also explain the opportunity to refuse cooperation under the new conditions. Such notifications may include a special section in which the employee personally enters his consent or disagreement to continue working in this organization after the owner has changed.

The further dismissal procedure follows the same procedure as other dismissals at the initiative of the employee.

IMPORTANT ! Since in this case the employee is considered the initiator of dismissal, labor legislation does not provide for additional compensation to the quitting employee. However, some payments, specifically for the case of a change of ownership, may be included in employment or collective agreements.

Read about the nuances of terminating an employment relationship on the initiative of an employee in the article “Termination of an employment contract on the initiative of an employee.”

Types of reorganizations and possible reasons for dismissal

The Civil Code of the Russian Federation (Civil Code of the Russian Federation) provides for five types of reorganization of organizations:

• merger;
• accession;
• separation;
• selection;
• transformation.

And only during the transformation, practically nothing changes for employees. For example, when a company converts from a private limited company to a limited liability company, there is no reason for dismissal.

In other cases, during reorganization, dismissals are possible for the following reasons:

1. reduction in the number or staff of an organization's employees. For example, during a merger, in a new company formed after the merger of two old ones, it is not possible to employ two directors, two deputy directors, two chief accountants;
2. an employee may refuse to continue working due to a change in the terms of the employment contract. For example, before the mergers, both companies had a legal department; after the merger, one of the heads of such a department was offered to head the legal department of the new company, and the other was offered to become its deputy. Not every employee can be satisfied with a demotion;
3. the employee may simply refuse to continue working due to the reorganization.

Does the new owner have the right to change the terms of employment contracts?

The entire Labor Code is built on protecting the rights of citizens to work, taking into account the fact that the employee, in cooperation with the employer, is the weaker party. In this regard, a separate norm introduced a ban on changing the fundamental terms of contracts with employees by a unilateral decision of the employer (Article 72 of the Labor Code). It does not matter whether this employer is the new owner.

The fundamental conditions should include, in particular:

• labor functionality;
• place of work;
• employee rights and obligations;
• rights and obligations of the employer;
• working conditions;
• wages;
• social Security.

Exception to the rules of Art. 72 of the Labor Code provides for only one thing - a fundamental change in working conditions:

• organizational;
• technical and technological (Article 74 of the Labor Code).

If a change of owner entails changes in the circumstances specified in Art. 74 of the Labor Code, then making adjustments to contracts with employees is allowed if the norms of Part 2 of Art. 74:

• employees must be notified of future changes in writing no later than 2 months before the implementation of the changes;
• in a situation where an employee agrees to work under new conditions, adjustments to his contract are made in standard written form;
• in a situation where an employee does not agree to changes, it is necessary to offer him another job suitable for his qualifications and experience. If such vacancies are not available, other employment options must be offered that meet the professional and medical eligibility criteria. If the transfer to a new job does not take place, the employee may be dismissed under clause 7, part 1, art. 77 TK.

NOTE! The only thing that cannot be changed in employment contracts under any circumstances is the labor function itself. Such a change can be regarded as forced labor, which is additionally prohibited in Art. 60 Labor Code of the Russian Federation.

Consequences for the employer

If the rights of a dismissed citizen are violated and labor legislation is not observed, the employee has the right to file a claim to restore the lost position.

If the departmental structure of the enterprise has changed, then this aspect is not grounds for forced dismissal. If desired, the new owner can dismiss workers due to layoffs or for any other reason prescribed in the Labor Code of the Russian Federation.

Violation of norms upon dismissal due to a change of ownership implies liability by the employer in accordance with Art. 5.27 Code of Administrative Offences. The solution to the issue of eliminating the management staff may be alternative proposals for transfer to another position, subject to the consent of the person concerned.

How is the collective agreement adjusted when there is a change of ownership?

The new owner is not obliged to comply with the provisions of the collective agreement, which was not concluded by him. Accordingly, when ownership changes, collective agreements are subject to renegotiation.

This is not done immediately: a transition period of 3 months is given, during which:

• the terms of the agreement concluded between the organization and employees before the transfer of ownership continue to apply;
• each of the parties (team and employer) can send the other party a proposal (draft) on new provisions of the next agreement;
• each party can send the other party a proposal to extend the current contract for a period of up to 3 years.

If part of the team disagrees with the new terms of the contract, the procedure for resolving the situation between the new employer and the employees who do not agree to work under the new conditions is set out above.

When an employee cannot be fired under the current circumstances

Dismissal of an employee upon change of ownership cannot be carried out if the employee is currently on sick leave or on vacation.

The current legislation of the Russian Federation provides for cases in which the dismissal of certain categories of employees is prohibited:

• pregnancy in women;
• single mothers with minor children under 14 years of age or with disabilities;
• women with small children under 3 years of age;
• workers raising a child without a mother;
• sole breadwinners in a family with children under 3 years of age;
• the employee has a large family in which he is one employed person.

How do employment contracts with employees work during reorganization?

There are two possible groups of changes to legal entities:

• change in the number of legal entities existing before the reorganization;
• change in the legal entity itself.

In the event of the emergence of new legal entities, the rights and obligations of the previous ones are transferred to them (in accordance with the terms of the reorganization and separation balance sheets). Thus, if the previous legal entity had an agreement with an employee with certain conditions, then these same conditions must be “inherited” to the successor.

If the legal entity itself changes (for example, its legal form), everything is even simpler. All duties and obligations under the employment contract must be transferred from the previous employer to the new one in full.

That is, during the reorganization of a legal entity, only the characteristics of the legal entity-employer can change in employment contracts with employees.
The terms of the contracts must remain the same, in contrast to cases of change of ownership. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Features of dismissal during enterprise reorganization

Transformation of the subject of activity always entails quite large-scale changes. In particular, such a process affects ordinary workers through the termination of their employment contract.

However, dismissal during the reorganization of an enterprise requires compliance with special legal norms, which cannot be ignored.

We are talking about both documenting the process and compensation payments, which in this case are due to employees.

What is enterprise reorganization

In a broad sense, the reorganization of an enterprise is the process of changing the organizational and legal form of the subject of activity. The result of such a transformation is another economic unit that continues to function, but taking into account innovations.

There are the following types of reorganization (paragraph 57 of the Civil Code):

1. Joining. The company ends its independent activities by merging with another company.
2. Merger. Consists of merging several legal entities into one organization. In this case, a new, more global enterprise begins to function, while old companies cease to exist.
3. Separation. Several separate enterprises are formed from one company. The original legal entity ceases to function.
4. Transformation. A fundamentally new subject of activity is being formed through its creation on the basis of the previous company. This fact is reflected in the registration documents.
5. Selection. The process involves the creation of several smaller firms on the basis of a legal entity. Moreover, the original company is preserved. We are talking about so-called subsidiaries, which are registered in Rosreestr as separate business units.

In addition to the fact that the result of reform is the emergence of a renewed or independent entity, in this case it is often necessary to fire employees. This need is usually associated with the abolition of a number of positions or changes in working conditions.

The nuances of dismissal

The process of dismissing employees during the reorganization of a legal entity is carried out in accordance with special regulations. It is necessary to follow the established procedure regardless of the type of transformation used. Here you need to rely on the contents of the Labor Code of the Russian Federation. In particular, paragraphs 75, 81, 77, 178, 180.

It is important to understand the following - reorganization cannot serve as a basis for terminating an employment agreement with an employee (Article 75 of the Labor Code). Management does not have the right to initiate dismissal, arguing its position only by the fact that a reform process has been carried out.

The grounds for termination of employment relations are:

1. Reduction of staff positions and number of employees (Article 81 of the Labor Code of the Russian Federation, paragraph 2). It is carried out only after the completion of registration of a new enterprise in Rosreestr. In this case, more experienced employees whose labor productivity indicators are at a high level have a clear advantage. Persons with disabilities, workers with occupational diseases, parents of disabled children, and heroes of the USSR also have privileges.
2. Change of owner of the enterprise (paragraph 81 of the Labor Code, paragraph 4). In this case, the management - the director, his deputy and the chief accountant - are subject to dismissal. Dismissal is formalized no later than 3 months from the date the new owner acquires property rights.
3. The employee’s refusal to continue activities due to changes in the terms of the employment agreement and the reorganization carried out (Article 77 of the Labor Code, paragraphs 6 and 7).

But the following categories of citizens are not subject to dismissal or reduction under any of the possible forms of reorganization:

• trade union members;
• women on leave due to pregnancy and after childbirth;
• employees on maternity leave (care leave up to 1.5 or 3 years);
• parents raising children alone with disabilities or under 14 years of age;
• employees on legal or unpaid leave or sick leave.

It is important to remember that if you miss any of the above points and carry out a dismissal, the procedure may be invalidated. Because there will be a fact of non-compliance with the Labor Code of the Russian Federation and infringement of the rights of the organization’s employees.

Dismissal procedure

The process of transforming an enterprise requires mandatory notification of all employees by means of a written notification against signature. The document indicates not only the form of reorganization, but also a note that the employee retains all labor rights. After the process is completed, the person must still be listed in their previous position.

The notice also states that the employee has the right to resign under Article 77 of the Labor Code (clause 6) if he does not want to continue working in the new company. After signing the act, the citizen is considered familiar with the reorganization.

Direct dismissal is carried out in accordance with the following stages:

1. Collection of applications from employees wishing to terminate their activities at the enterprise. The document is prepared in free form and signed by the employee. In the text of the application, you can note the reason - refusal to operate on the basis of reorganization.
2. Issuance of an order. If the number of employees is small, you can create an order for each one separately. If the company is large, it is allowed to issue a single order.
3. Issuance of documents and due payments. On the day of dismissal, recorded in the order, employees are given their work books, as well as all required compensation.

Dismissal during reorganization does not require 2 weeks of work. And if for any reason the employee changes his mind about terminating the contract, then management has no right to insist on this. In this case, the person’s activities in the new company will continue.

When reducing staff (abolition of a position) or the number of employees, a similar procedure applies. However, there are certain features.

The reduction regulations include the following stages:

1. Issuance of an order. The document indicates the date of entry into legal force. The list of persons or positions subject to reduction is attached to the order as an appendix.
2. Notification of citizens who have been laid off in writing against signature. Moreover, employees must be notified no later than 2 months before dismissal.
3. Notification of the employment service and trade union about layoffs. This is done in the form of a written notice.
4. Entry in the work book. The wording must reflect the legal grounds for terminating the employment agreement. For example, it should sound like this: “Dismissed due to staff reduction and due to refusal to transfer to another position.” Here it is necessary to clarify that during layoffs, management is obliged to provide people with new jobs that correspond to the previous conditions and level of professionalism of the person. If the transfer is refused, dismissal is carried out in the standard manner.

The process ends with the issuance of documents and monetary compensation to former employees. Moreover, the return of the work book and payment of funds is made strictly on the day specified in the order.

Cash compensation

Employees who decide not to continue working for the reorganized company are entitled to the following payments:

• wages accrued for the period actually worked;
• compensation for vacation days unused by the employee;
• other payments provided for by the regulations of the enterprise.

Important! When renouncing an employment relationship due to reorganization, the citizen is not entitled to accrual of severance pay.

But if an employee is laid off, then in addition to the specified compensation, he can count on receiving an additional amount upon dismissal. The one-time payment corresponds to average earnings. A similar amount is transferred to the laid-off employee for another 2 months, but only if there is no new place of work.

Dismissal of employees as a result of enterprise reorganization requires compliance with a number of rules established by law.

If the rules governing the process of termination of the contract are ignored, the procedure is subject to challenge in court with its further recognition as invalid.

In this case, the employer may fall under administrative sanctions, and the employee may request payment of compensation for moral damage with further reinstatement to his former position.

Source: https://lawinfo24.ru/trudovoe-pravo/uvolnenie/uvolnenie-pri-reorganizacii-predpriyatiya