Legal regulation, features and procedure for dismissal of employees in connection with the liquidation of an enterprise

Bankruptcy of a legal entity persons | 06/14/2019 | 3442 |

The process of filing bankruptcy of a legal entity is accompanied by a number of procedures, without which the liquidation of the company will not be completed. We are talking about the dismissal of employees, for which it is very important to be guided by the current legislation. Violations in this matter may lead to legal proceedings by former employees for payment of wages or full reinstatement. How to avoid such risks? Is it possible to refer to the bankruptcy of a company when dismissing an employee?

It is not always the case that filing an application with a corresponding requirement can serve as a legal basis for dismissing a subordinate. The fact is that the liquidation of a company does not occur immediately, but is divided into several stages, and at all stages except the last two, the law does not allow unilateral dismissal of an employee. Only when the bankruptcy process enters the final stage will this indicate the impossibility of the company functioning as before, which will make the dismissal procedure legal. We are talking about the following:

1. The first stages, and these are the stages of observation and financial recovery, leave a chance that the activities of the legal entity will not be stopped, so it will be impossible to fire the employee.
2. When the current management loses its powers and the company goes into external management, then you can fire your employees, but only those who do not belong to the personnel department, since this department always works until the very end, right up to the liquidation of the entire enterprise.

The state can dissolve under any terms when the bankruptcy process comes to an end. This is if bankruptcy proceedings have begun, which will allow the company’s property to be sold at auction, the legal entity to be terminated and its employees to be fired.

Are there any exceptions? In addition to the indicated personnel service employees, there are a number of other categories of citizens who will remain at work until the decision to terminate the enterprise’s activities is made. Only at the very last stage can it be possible to fire disabled people, pregnant women who have not previously taken maternity leave, and it will also not be possible to fire an employee who has a child under three years old in the family.

Dismissal due to bankruptcy of the enterprise.

As soon as the employer decides to liquidate the enterprise during the bankruptcy process, he will be able to begin dismissing employees on this basis.

Attention!
The decision to liquidate the company is made by a meeting of all participants, or by the sole founder. Employees must be notified of their dismissal at least 2 months in advance. The notice is drawn up in writing and handed over to employees against signature. Such a document is drawn up in any form, but at the same time, it must contain a number of mandatory information:

1. Full name, position, employee to whom it is addressed, and the structural unit (department) in which he works;
2. Date of preparation;
3. Information that a decision has been made to liquidate the enterprise, as well as the reasons for such a decision;
4. Notice of dismissal, indicating its date.

The document is signed by an authorized employee of the employer, indicating his position and a transcript of the signature.

What to do with young mothers

Russian legislation takes care of workers regardless of their status. But pregnant employees or women on maternity leave are fully protected from unlawful actions of the employer. This allows young mothers to be confident that the birth of a child will not affect their work status.

But the dismissal of workers during the bankruptcy of an enterprise does not spare this category of the population either. Upon complete liquidation of a legal entity, absolutely all employment contracts are terminated (according to paragraph 6 of Article 81 and Article 261 of the Labor Code of the Russian Federation).

The obligations of a bankrupt enterprise to pay money for pregnancy, childbirth, as well as child care benefits are transferred to the Social Insurance Fund. The procedure for notification, payments and issuance of a work book follows the same procedure as for other employees.

Order.

An order to dismiss an employee can be drawn up either in a free form or in the T-8 form.

At the same time, it must contain:

• Name of the organization;
• Serial number of the document, its date;
• Information about the concluded employment contract (No., date);
• Date of dismissal;
• FULL NAME. the employee, his position, the structural unit (department) in which he works;
• Grounds for dismissal.

The order is signed by the director of the organization. The employee meets him against his signature. If an employee refuses to familiarize himself with the order, the employer must draw up an act in which this fact will be recorded.

It might be interesting!

Dismissal due to staff reduction. Who can't be fired in 2021?

Notifying an employee of upcoming dismissal

Thus, the process of dismissing personnel in this situation is a mandatory action of the employer. Without following legal procedures, the dismissal process may be considered invalid. All employees are required to sign the notice of dismissal. By timing: 2 months is the general period by which the employer is obliged to notify the employee of the upcoming termination of the employment relationship. Employees with a short-term employment agreement are notified of dismissal 3 days in advance. Employees who are involved in seasonal work are notified 7 days before the upcoming dismissal. To prevent conflict situations in the future, it is very important for the employer to notify the employee of dismissal in writing. You need to make 2 copies: one copy is given to the employee, the second is stored in the HR department. The date of notification to the employee must be on the document, this will eliminate the fact that the document has been falsified. An employee’s refusal to review documents, made categorically, cannot be the basis for the employer’s evasion of responsibility when carrying out this action. If the employee refuses to familiarize himself, the information is provided orally, with the participation of witnesses consisting of 2 people. Then, after oral information, a notification act is drawn up, but in writing.

Entry in the work book.

Information about dismissal is entered into the work book in strict accordance with the wording enshrined in the Labor Code of the Russian Federation (clause 1 of Article 81). The entry must include the name, number, date of the order on the basis of which it is made, as well as the number and date of entry in the work book.

After making the final entry in the document, the employer’s authorized employee certifies all entries made at the enterprise with his signature, indicating his position and the transcript of the signature.

Also, the employee himself gets acquainted with all the entries made against signature in the work report. The information entered in the work book is repeated (duplicated) in the employee’s personal card, and is also certified by the signature of the resigning employee.

Let's sum it up

Bankruptcy of a company is a serious process that does not happen overnight. The lack of ability to pay debt obligations to creditors does not always end with the exclusion of an organization from the register of the registration authority. You should always wait for the final decision and only then begin the procedure for terminating contracts with employees. By observing the norms of the Labor Code of the Russian Federation, you can avoid serious problems with justice and maintain the respect of former and remaining subordinates.

Bankruptcy of an enterprise (company) means that a legal entity is unable to satisfy the financial claims of creditors and does not transfer obligatory payments (including to the budget) within 3 months from the date of payment. In addition, there are other signs of enterprise bankruptcy. The debtor himself, the prosecutor, or other interested parties can initiate the procedure. An enterprise can be declared bankrupt only by a court decision. The peculiarity of enterprise insolvency is that this multi-stage procedure is time-consuming, for example, forced bankruptcy can take 1 year. As a result of insolvency, the company may be liquidated. In this case, the main burden falls on the personnel department, since it is necessary to notify the personnel working for a specific employer. Notification of the upcoming liquidation of an enterprise also includes several stages that take place in strict accordance with the provisions of the Labor Code of the Russian Federation. Employees of a liquidated enterprise must have certain guarantees, at least for the first time, for the period of further employment. Thus, by declaring bankruptcy, a company must satisfy the legal demands of creditors. Dismissal in the event of bankruptcy of an enterprise is an extreme measure that employers take.

Delivery of documents.

On the final day of work, the dismissed employee must be given his documents, including a work book. If on this day the employee was absent from work or refused to receive it, the employer, in order to avoid adverse consequences, should send him a letter about the need to come for his documents, or allow them to be sent by mail.

It is important to know! It is prohibited to send a work book by mail abroad.

In any case, the employee’s documents must be issued to him no later than three days from the moment he submits such a request.

The company is bankrupt, but not liquidated

Many employers act proactively, dismissing employees at the initial stage of declaring the insolvency of a legal entity. This decision is explained by liquidation, although in fact it has not yet come to that. People quit, and the organization restores its functionality and continues its activities quite successfully.

In such a situation, the dismissed employee has a reason to go to court and recognize the right to reinstatement or payment of due compensation. The court will recognize and satisfy such a claim, because the reason for termination of the employment contract is not relevant.

Therefore, the employer should not “run ahead of the locomotive” and terminate relations with employees in advance. There are other methods of resolving the issue if there is a need to fire several people:

• Reduction of employees/staff.

This is less expensive than later dealing with the prosecutor’s office or receiving a subpoena.

Payments to employees of wages and compensation for vacation (calculation).

On the final working day, dismissed employees must be paid all funds due to them, including wages and compensation for unused vacation days. If on this day the employee does not show up for work or refuses to receive funds, the employer, if technically possible, must transfer the funds to him by bank transfer.

And if he does not have such an opportunity, the funds must be paid to the employee on the day he applies for the appropriate payments, or the next day after that.

Why is a meeting of former employees held during bankruptcy?

If the debtor, when dismissing employees, was unable to pay them for wages, he has a second line of creditors. To take into account their interests, the arbitration manager holds a meeting similar to a meeting of third-priority creditors.

The main purpose of the meeting of former employees is to specify the size of their demand and outline measures to eliminate wage arrears.

Also at the meeting, a representative of the meeting is elected who has the following powers:

• speaks at meetings of third-priority creditors without the right to vote;
• submits applications to the arbitration manager regarding payment of wages;
• receives documentation on the progress of the bankruptcy procedure for review;
• receives information about the amount of salary arrears;
• appeals to the court the actions of the arbitration manager.

Represent former employees elected by majority vote.

What payments are due to those resigning during bankruptcy?

If dismissal during the bankruptcy period is made after the employer has officially decided that the company will close, then the dismissed employees are entitled to monetary compensation (severance pay) in the amount of their average monthly earnings.

Moreover, the employer is obliged to pay employees the average salary during the entire period of job search and employment, but not more than two months in a row.

It might be interesting!

What to do if your employer fires you without warning

Payments

The total amount of payments guaranteed to an employee upon the employer’s initiative for dismissal is determined by Article 178 of the Labor Code of the Russian Federation:

• severance pay equal to average monthly earnings;
• maintaining, excluding benefits, the average salary for 2 months;
• preservation, by decision of the labor exchange, of the average salary in the third month after dismissal, in the absence of suitable work and provided that the dismissed employee complies with the two-week deadline for contacting the employment agency.

In addition to the payments provided for in the above article, as a general rule, dismissed employees are provided with:

1. Compensation for non-use of vacation (Part 1 of Article 127 of the Labor Code of the Russian Federation).
2. Payment of average earnings to an employee dismissed at his request before the notice period, for the number of days not worked before this period (Part 3 of Article 180 of the Labor Code of the Russian Federation).

Attention

The collective agreement also allows other guarantees, in the form of additional or larger payments. The main condition for such payments is that they should not worsen the established legislative norms.

Questions for a labor law expert:

Which article of the Labor Code of the Russian Federation regulates the dismissal of employees during bankruptcy?

Natalia

Labor expert

Question to the expert

Hello! The company is facing bankruptcy proceedings. How and on what basis should employees be dismissed? How does the article of the Labor Code of the Russian Federation regulate such dismissal?

Hello! The Labor Code of the Russian Federation does not directly regulate the termination of contractual relationships with employees of an enterprise during the period of its bankruptcy. At the same time, before the employer officially decides that the enterprise will be liquidated, dismissal can be made either by layoff or by agreement of the parties. And after such a decision is made - according to paragraph 1 of Art. 81 Labor Code of the Russian Federation.

What happens to employees when an organization goes bankrupt?

The bankruptcy of an employer does not always lead to the cessation of its activities and the dismissal of employees. After the court accepts a statement of financial insolvency and during the procedures of monitoring, financial recovery, external management, debt restructuring, the organization or entrepreneur continues to conduct its activities and pay employees salaries.

If the employer emerges from the crisis, liquidation and mass layoffs of employees will not be required. However, once a bankruptcy case is opened, employees are advised to monitor the progress of the insolvency procedure. As soon as there are delays in the payment of wages, mass layoffs can begin at any time.

You should know! Dismissal of employees is carried out at the stage of bankruptcy proceedings introduced in relation to the organization and at the stage of sale of the property of an individual entrepreneur. These two procedures are the last stage of bankruptcy, which ends with the liquidation of the business.

Aspects

Like any legal relationship, the bankruptcy dismissal procedure has its own nuances. Let's reveal some of them.

Deadlines

The frequency of withdrawal of personnel from the organization's staff, established by law, is calculated so that both the worker and personnel officers have time to take the necessary measures and prepare for the upcoming event within the legal framework. Wrong decisions and mistakes here can significantly harm both sides of labor relations.

An extremely important point is that in this option, dismissals are formed and submitted against signature:

• 60 days in advance - for workers on general terms;
• 7 days in advance - for temporary (seasonal) workers;
• for 3 days - cooperating with the company on the basis of a short-term two-month or shorter contract.

Payments

Those dismissed during staff reductions and liquidation of the company are entitled to payment of severance pay, as well as salary until employment (standard - 2 months, in exceptional cases - no more than 3 months) subject to being registered with the Central Employment Service. In this case, the appeal to the help of the Central Employment Center must take place within 2 weeks from the date of dismissal.

Important! The amount of salary before actual employment is equal to the employee’s average monthly earnings for previous periods. In this case, severance pay is taken into account when calculating these payments.

Payments due at the time of dismissal are closed no later than the immediate day of dismissal, if everything happens within the framework of the law. It is not legally prohibited to do this earlier than the deadline. But it is necessary to take into account the fact that impeccable accounting work is required here: tax calculations, determination of other deductions.

Dismissal of senior staff

The severance of labor relations with the person solely performing the functions of the company’s management is objectively complicated by some specific factors. An employment agreement with a director during bankruptcy proceedings is terminated under the following circumstances:

• after the appointment of a bankruptcy trustee, the former management is removed from their position. At this time, all procedures are managed by a newly appointed manager. From the moment of removal, the former representative of the company administration no longer has the right to sign any external or internal documentation, since he is deprived of corporate executive power. Removal is carried out at the request of the temporary manager;
• early termination of labor relations with a manager whose incompetent actions led the company to bankruptcy. But the chief accountant is also legally responsible for the correctness of the financial calculations made. The degree of guilt of each of them will be determined separately. Especially when it comes to intentional guilty acts.

A little more about the legal nuances

As with any other outcome of complete or partial liquidation of a company, bankruptcy can provoke a large number of controversial situations and legal conflicts. And they, in turn, can lead to litigation.

The claims of former personnel may be objective if, after completion of bankruptcy procedures, the company was not canceled, but continues to exist and is doing well financially. And at the same time, other workers were hired. Then bankruptcy, together with staff reduction, can be regarded as fictitious and law enforcement agencies can be involved in considering this issue.

Watch the video about the dismissal of employees due to liquidation

Moscow and Moscow region: +7

St. Petersburg and Len. region: St. Petersburg and region:

+7

Russia (hotline): 8 Get advice

Features of the procedure

One of the fundamental rights of a citizen of the Russian Federation is the inalienable right to work, the observance of which is regulated at the legislative level, in particular by articles of the Labor Code. To monitor compliance with the regulations, special government institutions were created, such as Trade Unions and Labor Inspectorates. Any violation on the part of the employer entails administrative and, in some cases, criminal liability.

Dismissal of employees is one of the most common procedures during which the rights of employees are violated. According to the Labor Code of the Russian Federation, there are several grounds for terminating a cooperation agreement:

• dismissal at the employee's own request;
• termination of an individual TD (for urgent TD);
• dismissal at the initiative of the employer (in case of repeated violations and material penalties);
• dismissal for a reason independent of the will of the parties (bankruptcy and liquidation of the enterprise).

Company bankruptcy (liquidation) is legal and economic insolvency, as a result of which the company cannot continue its activities and pay employees. At the same time, the procedure is not easy for both parties - both the employer and the employees. Bankruptcy is complicated by the fact that it is necessary to comply with the basic rules of dismissal.

The procedure for liquidating an enterprise due to insolvency:

1. Appointment of a liquidator and notification of the registration authority. At this stage, a meeting of the co-founders of the company is created, where the participants make a decision on liquidation and appoint a responsible person. The minutes of the meeting are certified by a notary. Within 3 days it is required to notify the Unified State Register of Legal Entities, as well as the Pension Fund and the Social Fund. After notifying the state authorities, the tax office issues a certificate of the beginning of the liquidation procedure of the enterprise;
2. Publication of a notice of liquidation in official media. The text requires indicating the full name of the organization, as well as details (TIN, legal address, number of the certificate of liquidation of the enterprise), the procedure and period of reorganization. Official media are recognized as “Bulletin of Economic Justice” and “Bulletin of State Registration”;
3. Notification of the upcoming liquidation of employees of the enterprise, creditors and employment services. The message is sent by registered mail. Within the enterprise, a corresponding order is issued against signature for employees. This must be done no later than two months before the upcoming reorganization;
4. Tax audit. The on-site commission identifies violations and carries out a reconciliation with tax data. If significant violations are identified at this stage, a penalty or fine will be assessed. If a debt is discovered, the money is returned to the counterparties promptly. Verification is a mandatory step during the liquidation of an enterprise;
5. Drawing up a PLB and sending a report to the tax office. The interim liquidation balance sheet (ILB) takes the form of a monthly accounting report and reflects information about property, creditors’ claims and their consideration;
6. Settlement with creditors who managed to present their claims within the period established by law;
7. Inventory;
8. Payments to employees - payment of wages, vacation pay, overtime. Calculation of severance pay;
9. Formation of the organization's budget, registration of liquidation of a legal entity.

After bankruptcy is registered, creditors or employees do not have the right to demand that the company’s management fulfill their obligations.

If the company is sold

According to Art. 75 of the Labor Code, changes in the management of a commercial organization are not a reason to cancel employment contracts. The law does not apply to the manager, his deputy and chief accountant. The new director can terminate employment relations with them at his own request. He has 90 days to do this from the moment he takes office.

For the rest of the employees, the situation does not change - the previous manager transfers to the appointed one not only all his responsibilities, but also his rights.

The external manager notifies employees that their contracts will continue, but with a new director. If one of them does not want to continue working, he has the right to resign on the basis of unwillingness to continue to carry out labor functions after a change in the owner of the company or its reorganization (Part 4 of Article 77 of the Labor Code).

Specifics of the issue

Employees can be dismissed from a bankrupt enterprise on several grounds. But in any case, the code requires employers to strictly observe all the rights of employees during the procedure for their dismissal. One of the reasons for dismissal may be the inability of the enterprise to fulfill its commercial obligations, which in some cases leads to bankruptcy proceedings against it.

If, nevertheless, the bankruptcy procedure was initiated against the enterprise, then the appointed persons responsible for resolving personnel management issues must carry out the full procedure for dismissal by the employee in accordance with all the rules and regulations prescribed by current legislation.

If any of the stages of the legal procedure for dismissing employees was missed for any reason or not completed in full, the personnel have the right to file a lawsuit to review and challenge the entire dismissal procedure.

The law provides guarantees to employees upon dismissal in the event of bankruptcy and liquidation, so there is a high probability that the court will recognize the right side of the employees. Then, to the unstable financial situation of the organization, additional costs may be added to pay compensation for employees who were tried to be fired illegally.

Director

From the point of view of labor legislation, the head of an organization has a dual status. On the one hand, he represents the employer, and on the other, he himself is an employee.

Who is entrusted with greater responsibility than everyone else. This manifests itself in particular in a greater number of grounds for dismissal.

One of them is the decision of an external or bankruptcy trustee in bankruptcy (Article 94 of the Bankruptcy Law).

Since with the introduction of external management the powers of the manager are terminated, his dismissal or transfer to another position is quite legal and logical.

An entry is made in the work book about the termination of the contract on the basis not of the Labor Code, but of bankruptcy legislation.

This is a rather unique case, since the grounds for dismissal in this case are not contained in the Labor Code. But there is a provision that gives the right to include such grounds directly in the Employment Contract.

There is one more feature. When a manager is dismissed by an external or bankruptcy trustee, he is not paid severance pay.

But it provides for compensation if the dismissal is not related to the commission of guilty actions. Its size is determined by the employment contract.

Labor legislation protects the interests of employees by not allowing them to be dismissed due to liquidation until this fact is officially recognized by the court.

Subsequently, it may well turn out that the employer continues to work or that the dismissal in bankruptcy preceded the opening of a new organization with the same management. This is the basis for challenging the legality of the dismissal and reinstatement of employees in their previous places.