This area is being reduced. Payments upon dismissal of an employee

Do you want to fire properly? Here step-by-step instruction. And do not forget that upon dismissal due to staff reduction, the employee is entitled to severance pay.

Step-by-step instructions for layoffs to reduce staff

Step 1. We issue an order on the upcoming staff reduction

The order is issued on the basis of any primary document:

decision of the company owners to optimize staffing levels;

order of a higher organization or parent company, etc.

name and number of staff units that are subject to reduction;

timing and preparation time necessary documents;

persons responsible for organizing and preparing documentation.

The order must be prepared at least 2 months before the planned reduction. If a reduction in staff may result in mass layoffs, then at least 3 months in advance.

As an example of determining the mass dismissal rate, we can take the following figures (clause 1 of the Regulations approved by Resolution of the Council of Ministers of the Russian Federation dated 02/05/1993 No. 99):

50 or more people within 30 calendar days;

200 or more within 60 calendar days;

500 or more within 90 calendar days;

Or dismissal of 1 percent of the total number of personnel within 30 calendar days in regions with a total number of employees of less than 5 thousand people.

Sample order for organizational and staffing activities

Step 2. Notify the trade union and employment authorities

1. Trade union.

If there is a trade union in the organization, it is necessary to send notice of the planned reduction. The notice period is at least 2 months before the planned dismissal. If the reduction can lead to mass layoffs - at least 3 months in advance.

2. Employment Service.

This organization must be notified without fail if employment contracts with employees are terminated due to staff reductions. If only positions in the staffing table are being reduced and no one is leaving, there is no need to send notice. The notice period is the same as for a trade union (for individual entrepreneurs, the notice period is 2 weeks, regardless of the number of people being dismissed).

Sample notification of a trade union organization

Sample notification of employment authorities

Step 3. Determine the circle of persons who have the preferential right to remain at work

If an organization eliminates one of two identical positions, the employer is faced with a choice of which employee to keep. In accordance with Article 179 of the Labor Code of the Russian Federation, employees with higher labor productivity and qualifications have an advantage in remaining at work. At equal conditions preemptive right have:

family employees with 2 or more dependents;

sole breadwinners in the family, regardless of the presence of children;

employees who received an occupational disease or injury while working for this employer;

Chernobyl victims;

employees admitted to state secrets;

military spouses, etc.

The employer can expand this list by including other categories of employees in the collective agreement.

Step 4. We notify employees in writing about the upcoming dismissal.

The employer is obliged to notify each employee being laid off in writing about the upcoming dismissal at least 2 months before his dismissal.

Sample notification

The fact of the warning must be confirmed by the employee’s signature. If the employer does not have written confirmation, the employee will subsequently be reinstated at work.

If the employee is actually absent from work, the employer must give him notice by registered mail with notification of delivery by mail. It must be remembered that employees must be informed of the fact of their dismissal at least 2 months in advance, therefore, when sending a letter, it is necessary to take into account the timing of its delivery.

Step 5. We offer employees other available vacancies in writing.

The employer is obliged to offer all laid-off employees available vacant positions that are not contraindicated for them due to health reasons. At the same time, if during the period of reduction the employer has vacant positions, they must also be offered. If this is not done, the employee will be reinstated at work.

The fact that available vacancies are offered must be recorded in writing.

If the employee refuses the offer, his refusal must also be recorded in writing.

If he refuses to sign, draw up a document; in the future you may need it in court.

Sample notification of available vacancies

Step 6. We obtain the opinion of the trade union on the layoff of an employee who is a member of this trade union.

If there is a trade union at the enterprise, its opinion must be taken into account by the employer in accordance with Article 373 of the Labor Code of the Russian Federation (see Step 2). Ignoring this requirement will result in the employee being a trade union member being reinstated at work.

In total, the trade union has 7 days to develop its position on the issue of the redundant employee. During this time, the employer must receive a reasoned opinion from the trade union, otherwise it may not be taken into account.

If the union agrees with the upcoming cuts, it will write so.

If the trade union disagrees with the employer’s decision to lay off an employee, the employer must hold consultations with the trade union within three days in order to find a compromise solution. These negotiations must be documented in protocol.

In general, the opinion of the trade union is advisory in nature, the final decisions remain with the employer, however, if the opinion of the trade union is ignored, appeals either to the labor inspectorate or directly to the court are possible.

The courts often side with the employee, so it is very important to carry out this stage in strict accordance with the law and within the specified time frame in order to avoid a court decision to reinstate the employee at work due to a procedural error made during organizational and staffing activities.

Step 7. We formalize the termination of the employment contract

An order to dismiss an employee due to staff reduction is issued by.

Clause 2 of Part 1 of Article 81 of the Labor Code of the Russian Federation is indicated as the reason for dismissal.

Who cannot be fired due to staff reduction

The list of employees who cannot be dismissed due to staff reduction is set out in Article 261 of the Labor Code of the Russian Federation:

pregnant women;

women raising children under 3 years of age;

a single parent raising a disabled child under the age of 18 or a child under the age of 14;

the sole breadwinner of a disabled child under the age of 18 or a child under the age of 3 in a family where there are three or more young children.

Payments upon dismissal due to staff reduction

The amount of benefits upon dismissal due to staff reduction is calculated in accordance with the general procedure established by Article 139 of the Labor Code of the Russian Federation. As additional compensation for dismissal due to reduction, there may be a payment that is due to the employee if he or she has written consent to terminate the employment contract before the expiration of the warning period about the upcoming dismissal.

An example of calculating the payment of monetary compensation in 2016 for staff reduction

To calculate the amount of compensation for dismissal due to staff reduction, all types of cash payments provided for in the remuneration system and used in the organization are taken into account.

On the day of dismissal (regardless of the reason for dismissal), the employer is obliged to transfer to the employee all funds due to him, including compensation for unused days of annual paid leave.

The size of this amount in this particular case does not matter, it can be anything, let’s call it X.

The amount of payment X is included in the calculation of the average monthly earnings employee on the basis of which compensation will be accrued to the employee in connection with the reduction, let's call him Y.

Thus, on the last day of his work, the employee receives a cash payment equal to X + Y.

Next month, the employee will receive another payment equal to Y if he is not employed (the employer requires the original work record book to be presented before making the accrual).

Further, if a person, within two weeks from the date of dismissal, registered with the employment agency and was not employed by him, and the employment agency, in turn, decided on the need to accrue a third compensation payment, the employee will receive another payment in the amount of Y.

If the employment relationship was terminated before the expiration of a two-month warning period about the upcoming dismissal at the initiative of the organization, and the person was dismissed with his written consent, the employer compensates him for unworked time cash payment in the amount of average earnings (calculation is carried out in accordance with Article 139 of the Labor Code of the Russian Federation). In fact, this makes it possible for a person to start searching new job as early as possible without losing anything financially.

Fine for violation of the dismissal procedure for staff reduction

For failure to comply with the above rules, the employer may be held administratively liable under Article 5.27 of the Code of Administrative Offenses of the Russian Federation and fined up to 50 thousand rubles for each illegally dismissed employee.

In case of repeated violation, the fine can be up to 70 thousand rubles for each employee.

In addition, the employer will have to compensate each time an illegally dismissed employee for the earnings he did not receive for the entire period of forced absence.

Plus, legal costs will also be reimbursed by the employer.

It is also important for employers and officials to know the court practice in this regard. One of the interesting cases was examined by the Supreme Court of the Russian Federation. From the case materials it follows that the State Tax Inspectorate received several complaints about violations committed by the employer during staff reductions. On these grounds, 2 unscheduled inspections, and in connection with the identification of violations, 2 different decisions were made to bring an official of the employer to administrative liability under Part 1 of Art. 5.27 Code of Administrative Offences.

However, the Supreme Court of the Russian Federation, by Resolution No. 41-AD18-21 of October 1, 2019, canceled one of the fines. According to the judges, in in this case there were not two different offenses, so prosecution can only be made once. The Resolution also states that the results of several inspections can be combined into one resolution on administrative liability if the same violations are identified, as was the case in this situation.

Express your opinion about the article or ask the experts a question to get an answer

ADJUSTMENT OF STAFF SCHEDULE

First of all, you need to develop a reduction plan and prepare an order to make changes to the staffing table construction company.

GUARANTEES OF LEGISLATION

When preparing the relevant documents, it is necessary to remember that some categories of employees, when staffing is reduced, have a priority right to be retained at work, and some cannot be laid off in principle.

Preferential rights are given to employees with higher labor productivity and qualifications. This is defined in Article 179 of the Labor Code of the Russian Federation.
With equal labor productivity and qualifications, preference is given to:
- family - if there are two or more dependents;
- persons in whose family there are no other workers with independent income;
- employees who received a work injury or occupational disease while working in this company;
- disabled people of the Great Patriotic War and disabled combat veterans;
- employees who improve their qualifications in the direction of the employer without interruption from work;
- other categories of employees whose preferential rights are determined in the collective agreement.

Who can't be laid off? Termination of a contract at the initiative of the employer due to a reduction in the number or staff of the following employees is not allowed (Article 261 of the Labor Code of the Russian Federation):
- pregnant women (dismissal of a pregnant employee is permitted if she was hired for the duration of the duties of an absent employee and there is no possibility of transferring her to a vacant position);
- women with children under three years of age;
- single mothers raising a child under the age of fourteen (a disabled child - up to eighteen years);
- other employees raising these children without a mother.
It is also impossible to lay off workers during illness and while on vacation (Article 81 of the Labor Code of the Russian Federation).
In practice, the question often arises: is it possible to dismiss a person who is on probation? Yes, you can. After all, all the rules apply to such workers. labor law relating to regular full-time employees.

NOTICE OF UPCOMING REDUCTION

The company is obliged to notify not only employees, but also the employment service of the upcoming layoff.
Employees must be notified of the upcoming dismissal personally and against receipt at least two months before the expected date of dismissal (Article 180 of the Labor Code of the Russian Federation). The form for such a notification has not been officially approved, so it can be compiled in any form.
In this case, the company, with the written consent of the employee, has the right to terminate the contract with him. employment contract and earlier - before the expiration of the two-month period. However, in this case, the employee will have to pay additional compensation in the amount of average earnings, calculated in proportion to the time remaining until the end of the term.
Please note: notice periods may vary.
Thus, workers who have entered into fixed-term employment contracts for a period of up to two months must be notified of layoffs at least three calendar days in advance, and workers engaged in seasonal work - seven calendar days in advance (Articles 292, 296 of the Labor Code of the Russian Federation).
The company must also notify the employment service of the upcoming dismissal no later than two months in advance. And if we're talking about about mass layoffs - three months in advance. This procedure is provided for in paragraph 2 of Article 25 of the Law of April 19, 1991.
No. 1032-1 “On employment in Russian Federation"and Article 82 of the Labor Code of the Russian Federation.
In this case you need to fill in:
- “Information about the mass release of workers”;
- “Information about laid-off employees.”
The forms of the forms are given in Appendices No. 1 and No. 2 to the Regulations on the organization of work to promote employment in conditions of mass unemployment, approved by Resolution of the Council of Ministers - Government of the Russian Federation of February 5, 1993 No. 99.

OFFER OF AVAILABLE VACANCIES

It is important to remember that dismissal due to staff reduction is considered legal only if the company does not have the opportunity to provide people with other work available in the organization. Moreover, vacancies that correspond to the qualifications of the employee being laid off, as well as lower-ranking (or lower-paid) vacancies are taken into account. The main thing is that the employee gives his written consent to the transfer (if he can perform other work taking into account his state of health).
At the same time, the employer is obliged to offer the dismissed all vacancies available in the given area that meet the relevant requirements. Offering work in other areas should only be done in cases where such an opportunity is provided for by a collective or labor agreement (Article 81 of the Labor Code of the Russian Federation).
The offer form for available vacancies is also not officially approved, so it can be compiled in any form.

CRITERIA FOR MASS TERMINATION

They are defined in sectoral or territorial agreements. There is no such document for construction. Therefore, one should be guided by the general standards established in paragraphs 1, 2 of the Regulations approved by Resolution No. 99. The main criteria for mass layoffs are the indicators of the number of dismissed workers in connection with the liquidation of organizations or a reduction in the number or staff of employees for a certain calendar period. These include:
a) liquidation of an organization of any legal form with 15 or more employees;
b) reduction in the number or staff of the organization’s employees in the amount of:
- 50 or more people within 30 calendar days;
- 200 or more people within 60 calendar days;
- 500 or more people within 90 calendar days;
c) dismissal of employees in the amount
1 percent of the total number of employees in connection with the liquidation of an organization or reduction in headcount or staff within 30 calendar days in regions with a total number of employees of less than 5,000 people.
Depending on the territorial and sectoral characteristics of economic development and the level of unemployment in the region, other criteria for assessing mass layoffs, determined by the authorities, may be established to enhance the social protection of employees of organizations state power republics within the Russian Federation, territories, regions, autonomous entities, cities and districts.
COORDINATION WITH THE TRADE UNION

The employer, according to part one of Article 82 of the Labor Code of the Russian Federation, when making the appropriate decision, is obliged
inform the elected body of the primary trade union organization about this in writing no later than two (three - in case of mass layoffs) months before the termination of employment contracts with employees.
In this case, one should take into account the position of the Constitutional Court of the Russian Federation, which is expressed in the ruling of January 15, 2008.
No. 201-O-P. The court emphasized that the purpose of this norm is to provide the trade union organization with the time necessary to implement its existing opportunities to protect the social and labor rights and interests of workers upon termination of employment contracts with them, but in no way restricts the employer’s powers to independently make the necessary personnel decisions in order to implementation of effective economic activity. This conclusion is based on the constitutional requirements for a fair coordination of the rights and interests of employees with the rights and interests of employers as parties to an employment contract and as participants in a social partnership.
In other words, the consent of the elected body for reduction is not required; it is enough to notify it in writing.
When laying off employees who are members of a trade union, the reasoned opinion of the elected body of the primary trade union organization must be taken into account in accordance with Article 373 of the Labor Code of the Russian Federation.

TERMINATION

After two months after delivery of the notice of layoff, the employer has the right to issue an order to dismiss the employee. After the employee has read the order (against receipt), his work book a record of dismissal is made.
The order is issued in form No. T-8, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1.
How to draw up a work book in the event of a layoff is explained in Section 5 of the Instructions approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69. Thus, when terminating an employment contract at the initiative of the employer, including in the event of a reduction in staff, an entry is made in the work book about dismissal (termination of an employment contract) with reference to the corresponding paragraph of Article 81 of the Labor Code of the Russian Federation. For example: “Dismissed due to a reduction in the organization’s workforce, paragraph 2 of Article 81 of the Labor Code of the Russian Federation.”
The wording of the entry in the book must correspond to the wording of the paragraph (article) of the Labor Code of the Russian Federation indicated as the basis for the entry. Abbreviations are not allowed either in the text or in references: you cannot write “trans.” instead of “translated”, “p.” instead of “clause”, “Labor Code of the Russian Federation” instead of “Labor Code of the Russian Federation”, “pr.” instead of “order”, etc. (clause 1.1 of the Instructions). This is required to eliminate possible discrepancies.

Payments upon layoff

Dismissed employees must be paid on their last day of work. If a person did not work on the day of dismissal, then the money is paid to him the next day after he applied for it.
This procedure is established in Article 140 of the Labor Code of the Russian Federation.

WHAT PAYMENTS ARE ALLOWED TO AN EMPLOYEE

Upon dismissal due to a reduction in headcount or staffing, the employee is entitled to pay:
- severance pay in the amount of average monthly earnings;
- average earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).
This is stated in Article 178 of the Labor Code of the Russian Federation.
In exceptional cases, the average monthly salary is retained by the laid-off employee for the third month from the date of dismissal.
But this requires a decision from the employment service (it can be issued if a person applied within two weeks after dismissal and was not employed).
For builders working in organizations located in the regions Far North and equivalent areas, Article 318 of the Labor Code of the Russian Federation provides for additional benefits.
Thus, the maximum period for maintaining average monthly earnings for the period of employment is three months from the date of dismissal.
And in exceptional cases, by decision of the employment service authority, the average monthly salary can be maintained during the fourth, fifth and sixth months (if the person applied within a month and was not employed).
In addition, as noted above, if the employment contract is terminated early (before the expiration of a two-month period from the date of notification, with the written consent of the employee), additional compensation is due. The amount of compensation is equal to average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal (Article 180 of the Labor Code of the Russian Federation).
And of course, the dismissed employee must be paid compensation for unused vacation(including additional).
Please note: when foreign construction workers are dismissed after the quotas expire (based on clause 12 of Article 83 of the Labor Code of the Russian Federation), severance pay is not paid. Article 178 of the Labor Code of the Russian Federation does not provide for its payment in this case. But such a dismissal is not considered a reduction.

Legislative consolidation of the staff reduction procedure is carried out by Part 2 of Art. 81 of the Labor Code of the Russian Federation, which deals with issues of dismissal.

In addition to the need to comply with the established procedure for carrying out this procedure, the employer must also take into account the circle of subordinates and knowledge, as well as those who have a preferential right to retain the position. Therefore, it is worth considering in more detail the rights that are provided to employees when staffing is reduced.

An important condition The legality of dismissal on such grounds as staff reduction is compliance with the established sequence of actions.

At the same time, the absence of a previous position due to its reduction is not a reason for refusing an employee to exercise his right and the adopted court decision. The employer will first have to cancel the previous reduction or re-enter the position, and then reinstate the employee to it.

When dismissing an employee due to a reduction in headcount or staffing, it is important not only to correctly carry out the entire reduction procedure, but also to correctly calculate the payments due to dismissed employees, as well as to correctly calculate taxes. Albina Ostrovskaya, leading tax consultant at the TaxOptima consulting company, talks about how to do this.

Who can't be fired due to redundancy?

First, let's say a few words about how downsizing differs from downsizing. When staffing is reduced, the number of staff positions for a particular position is reduced. For example, instead of six accountants, four remain on the staff. And when there is a reduction in staff, there is an exception from staffing table the position(s) itself. For example, the position of legal adviser is abolished in an organization.

The reduction procedure requires special documentation. In addition, laid-off employees are entitled to certain guarantees and compensation. Violation of the procedure may result in lawsuits by dismissed workers. Often former employees cases are won precisely because the company did not comply with the legally established procedure for layoffs.

First of all, you need to know that for some categories of workers there is a ban on layoffs. Thus, it is impossible to lay off pregnant employees, women with children under the age of 3, single mothers raising children under the age of 14 (a disabled child under the age of 18) and other persons raising these children without a mother. It is also prohibited to lay off those workers who are the sole breadwinners in a family with a disabled child under 18 years of age, or the breadwinners of a child under 3 years of age in a family raising three or more young children, if the other parent does not work (Article 261 of the Labor Code RF).

Preemptive right

Now let’s look at the concept of “preemptive right to remain at work.” So, if a decision is made to reduce the accounting staff by 2 units, the employer needs to select from several accountants those who will have to be fired, and this choice must be justified. Article 179 of the Labor Code of the Russian Federation clearly states that when the number or staff of employees is reduced, the preferential right to remain at work is given to employees with higher labor productivity and qualifications.

The Labor Code of the Russian Federation does not answer the question of how higher labor productivity and qualifications are determined. However, there is a definition of qualification. An employee's qualifications are the level of knowledge, skills, professional skills and experience of an employee. Consequently, to decide whether to remain at work, it will be important how the level of education of the employee (an employee with higher education will have an advantage over an average worker vocational education, with a higher rank in front of an employee with a lower rank), and specific work results (for example, achieving certain indicators and results at work). Length of service in a particular position should also be important when selecting employees to be retained. In general, in practice, when deciding the issue of labor productivity of employees subject to dismissal due to reduction in headcount or staff, the employer, most often, proceeds mainly from the subjective opinion formed about a particular employee during the performance of his official duties.

If the level of qualifications and productivity of several employees subject to layoffs are the same, preference is given to the persons specified in Part 2 of Article 179 of the Labor Code of the Russian Federation. Such persons include, in particular, family workers with two or more dependents, workers in whose family there are no other persons with independent earnings.

Are there any vacancies? Offer!

If during a layoff there are vacant positions in the company, the employer is obliged to offer them to the “redundant” employee (Article 180 of the Labor Code of the Russian Federation). Moreover, the proposed position may be lower than the one the employee previously occupied, both in status and in salary.

For example, at the time of reduction of the position of a senior tax consultant in an audit company, there is a vacancy for a tax consultant. In this case, the employer must offer the retrenched senior consultant a consultant position. If the employee does not agree to these conditions, the company can lay him off (Part 3 of Article 81 of the Labor Code of the Russian Federation). The employee’s refusal must be recorded on paper so that the company has evidence that it has complied with the requirement to offer available vacancies to the dismissed employee.

And if a tax consultant is laid off, but the company has a vacant position as a senior tax consultant, can the laid-off employee apply for this vacancy? No, he can not. The fact is that the requirements for the position of senior tax consultant are more high requirements and the departing consultant will likely not meet these requirements. As the Plenum noted Supreme Court Russian Federation, when deciding whether to transfer an employee to another job, it is also necessary to take into account real opportunity employee to perform the work offered to him, taking into account his education, qualifications, and work experience (clause 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

Please note: you should not limit yourself to offering only those vacancies that existed in the company at the time the decision to make redundancies was made. Vacancies in the company may appear constantly. Therefore, the employer is obliged to offer another available job during the entire period of reduction measures, including on the day of dismissal.

Step-by-step actions of the employer

Step 1. The head of the company issues an order to reduce the number or staff, which indicates the positions to be reduced and the number of staff units to be reduced. This document is published at least 2 months before the expected start of layoffs. If the proposed reduction is massive, then the reduction order must be issued at least 3 months before the reduction.

Step 2. At the same time, an order is prepared (according to the unified form No. T-3, approved by Resolution of the State Statistics Committee of the Russian Federation dated 01/05/04 No. 1) and an order is issued to approve the new staffing table.

Step 3. Employees who are subject to layoffs are warned of their upcoming dismissal. To do this, a notice of termination of the employment contract due to a reduction in staff or numbers is drawn up. It must indicate the date of familiarization, under which the employee signs. The employee must be familiarized with such notice at least 2 months before dismissal.

Step 4. Notifications are drawn up about the offer to the employee of another vacant position (if any). The employee must also sign the notification, and in case of refusal of the proposed vacancy, record his refusal in writing in this document.

Step 5. The employer notifies the employment service of the upcoming layoff. The notification form is contained in Decree of the Government of the Russian Federation dated 02/05/93 No. 99 (Appendix No. 2). It indicates the full name of the laid-off workers, their education, profession (or specialty), qualifications, as well as their average wage. But regional employment centers can also approve their own forms for submitting information about laid-off workers. The employment service should be notified no later than 2 months before the start of the relevant activities (in case of mass layoffs - 3 months).

Step 6. An order is issued to terminate the employment contract with the employee in the unified form No. T-8 (approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1).

Step 7 Entries are made in the work book upon termination of the employment contract. The entry will look like this: “Dismissed due to a reduction in the number (staff) of the organization’s employees, paragraph 2 of part 1 of Article 81 of the Labor Code of the Russian Federation.”

Step 8 All necessary amounts are paid to dismissed employees. Payment is made on the day of dismissal (Article 140 of the Labor Code of the Russian Federation).

Please note: this algorithm must be used by employers who do not have a trade union.

Entitled payments

The laid-off employee is entitled to wages for the days worked in the month of dismissal (including the advance payment, if it was paid for that month). Compensation for unused vacation, if any, is also paid. In addition, the company is obliged to pay the laid-off employee severance pay in the amount of average monthly earnings (Article 178 of the Labor Code of the Russian Federation). All these amounts are paid to the employee on the day the employment contract ends.

Also, the laid-off employee retains his average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay). An employee can receive this payment after he writes a corresponding application to the organization and presents a work record book confirming that he did not work anywhere at that time.

In exceptional cases, the average monthly salary is retained by the dismissed employee during the third month from the date of dismissal by decision of the employment service body, if within two weeks after the dismissal the employee applied to this body and was not employed by it. For payment for the third month individual must submit a document from the employment service to the company.

Please note: the amount of severance pay may be higher than the average monthly earnings, if this is provided for by labor or collective agreement.

Early layoff

As noted earlier, the employer is obliged to warn the employee about the upcoming layoff at least two months before dismissal. However, he can dismiss an employee earlier, but subject to the payment of additional compensation (Part 3 of Article 180 of the Labor Code of the Russian Federation) and the consent of the employee. The amount of compensation is determined based on average earnings, calculated in proportion to the time remaining before the expiration of the notice period for dismissal. And the employee must give his consent in writing. Usually in this case the employee writes a statement.

Taxation of severance pay

Severance pay, as well as average monthly earnings for the months following the reduction, should not be taxed, since these amounts are classified as income exempt from taxation (clause 3 of Article 217 of the Tax Code of the Russian Federation). However, only an amount up to three times the average monthly salary is eligible for benefits. Anything that exceeds this amount is subject to personal income tax.

But insurance premiums do not need to be charged on these payments, regardless of the amount of payments (subclause 2, clause 1, article 9 Federal Law dated July 24, 2009 No. 212-FZ).
As for profit taxation, accruals to employees released due to layoffs are classified as labor costs (clause 9 of Article 255 of the Tax Code of the Russian Federation). At the same time, increased amounts of payments are also included in expenses if they are provided for in an employment or collective agreement (letter from the Ministry of Finance of Russia

This is a long and very responsible process for any employer. Because it involves notification of persons subject to layoff two months before the date of its implementation, as well as payment to them of all due funds, which must be issued on the last day of work. In addition, the employer must offer available vacancies to this category of subordinates, and also not allow the hiring of new people.

Preparing for downsizing

Before carrying out layoffs due to staff reductions, the employer must fulfill several conditions:

Change the existing staffing table or approve a new one, which would show the impossibility of expanding the staff beyond the positions assigned to it;

Notify subordinates about this 2 months in advance;

Offer workers other vacancies that are available in the organization;

Notify employment authorities within the period specified by law.

If a citizen already knows in advance that there is a layoff at work and that he is subject to it, then he can immediately discuss this issue with his manager. After all, you can receive all the necessary payments earlier than two months and quickly find a new vacant position, if, of course, you can’t stay in your current position.

Laying off due to redundancy is expensive

In reality, dismissal of employees due to staff reduction is not only a time-consuming, but also not a very cheap procedure. The boss needs to pay people not only wages and compensation for vacation that was not used, but also severance pay for two months. In addition, if a citizen, after being laid off, is not employed no later than ten days from the date of his dismissal, then in this case he will receive a cash benefit from the previous manager for the third month. That is why many employers try to make their subordinates subject to dismissal due to at will. Then you won’t have to pay them so much money.

If there is a layoff at work, but the boss still forced the unwanted employee to leave of his own free will, such dismissal can be appealed in court. Only for this you will need witness testimony and documentary evidence this fact. Otherwise, it will be simply impossible for a subordinate to be reinstated at work and receive all the money due.

Notification

The manager warns the employee about the upcoming layoff 2 months in advance. The notice is drawn up in writing and handed to the person against signature. Otherwise, the employee will not be considered aware of the upcoming dismissal, which may subsequently cause his boss big troubles, even leading to litigation.

In a situation where there is a layoff at work, the employee’s rights should not be infringed by his boss. The latter is obliged to offer the former all available vacancies, which may be specified in the notification itself.

The redundancy notice looks like this:

00.00.00 _______________

Dear __________________ (employee’s full name)!

We notify you that due to staff reductions, the position you hold _____________ is subject to reduction __________ (the number taking into account two months from the specified date of notification).

We offer you a choice of available vacancies ______________ (name of vacancies). If you agree to work in a different position, please inform the HR department of the organization (name) to the HR specialist in writing before the expiration of a two-month period from the date of receipt of the notification.

Sincerely, Director of LLC ________________ (signature transcript).

From the moment the subordinate was notified of the upcoming reduction, a two-month period begins to expire, after which he is subject to dismissal with all payments due to him, unless, of course, he agrees to another proposed vacancy.

Payments

When dismissing a person on the basis of clause 2 of part 1 of Article 81 of the Labor Code of the Russian Federation, the manager must pay him in full and pay:

Salary for the entire period of work.

Compensation for vacation if it was not used. If the employee has already been on vacation, but the period has not been fully worked out, then in the event of a reduction, deductions from his salary are not made for this.

In the amount of two months' earnings. If, after dismissal, an employee applied to the employment authorities, but was not employed, he retains this earnings for the 3rd month. In this case you need to provide former management his work book or a certificate from the employment center that he is registered with them.

Full payment to the employee must be made on the last day of his work, otherwise this will be a violation of Article 140 of the Labor Code.

Right to keep your job

If there is a layoff at work, then only those persons with the highest labor productivity and qualifications have a priority right to retain their jobs.

In the case where all workers have the same productivity and highly qualified, preference should be given to an employee who:

Has two or more dependents to support, for whom the salary this person is the main source of existence;

Is the sole breadwinner of the family if none of its members has a job or other income;

Received an illness while working or another serious injury in this organization;

Is a disabled person during the Great Patriotic War or a disabled person who was injured during the defense of the Fatherland;

Increases his level of education in the direction of management without interruption from work.

Paperwork

After all the measures taken related to dismissal due to staff reduction, the moment comes when the employee must be given the work book and all the payments due. After this, he must sign the order confirming this fact.

When preparing an order, the organization’s personnel specialist must indicate in it the exact wording of the grounds for dismissal, indicating the paragraph, part and article of the Labor Code. After this, fill out the work book, put your signature on it and certify all this with the seal of the organization. The entry in the employment record should be as follows: “Dismissed due to staff reduction on the basis of paragraph 2 of part 1. Other wording is not used, because the citizen is dismissed from work due to reduction, and not due to other circumstances.

All documents related to the person’s performance of his labor activity, as well as all documents required for him cash, must be issued to the employee on the day of dismissal.

Inadmissible moments

At a time when there is a layoff at work, it is unacceptable to accept new people into existing vacant positions. This would be a serious violation on the part of the manager, since he should offer these vacant positions only to persons who are at risk of dismissal on this basis. The level of education of workers does not matter in this case.

It is unacceptable, in the final financial calculation, to deduct from an employee’s salary for annual leave that has already been granted, if 12 months have not been fully worked out.

In a situation where there is a layoff at work, the employee’s rights cannot in any way be infringed upon by management. This primarily applies to timely payments, otherwise the dismissed person may seek protection from the judicial authorities.

Contacting employment authorities

After the employment contract with an employee has ended on the basis of dismissal due to staff reduction, the citizen has every right and is even obliged to contact the employment authorities within 10 days from the date of his payment. In this case, he will retain his average earnings for the third month.

The employment service, in turn, should help the unemployed find a vacancy that interests him. As a rule, for those who want to work, a good and suitable job. Reduction of staff as a basis for dismissal does not in any way affect subsequent work activity, but at the same time it gives the opportunity to a person registered with the employment authorities to receive maximum size unemployment benefits.

Job search

But sometimes the employment service does not provide attractive vacancies, so you have to go looking for them yourself. At the same time, you need to spend a lot of effort to find a truly interesting and paid position.

Finding a suitable vacancy is always morally difficult. This is especially difficult if the fired person has been laid off. Finding a job in this situation is further complicated by the fact that a place with a decent salary is difficult to find. That is why many citizens who are subject to layoffs try to remain in their previous place, even in a different position and with a lower salary. This is better than being unemployed later and receiving a small benefit from the employment center.

A good job after a layoff will most likely go to someone who has extensive experience in their profession and is actively looking for a new vacant position.

Illegal reduction

In practice, there are cases when employers try to get rid of annoying subordinates by any means. In this case, methods such as illegal or “imaginary” reduction are also used. In this case, no measures indicating preparation for dismissal are carried out by the manager. The employee is simply verbally warned that his position will be reduced, and is given a period of two months to look for another job.

In the event of an illegal layoff, no payments other than wages are made to the citizen, although they are written down on paper. At the same time, few people turn to the courts to protect their rights, although such cases occur quite often.

Arbitrage practice

Court hearings between a subordinate and his employer are not uncommon in modern justice. Moreover, the law almost always stands on the side of the employee, and not his boss.

Let's give an example from judicial practice, illustrating the situation.

The citizen worked as a foreman at a factory. After the manager changed, he started having problems at work. The new boss wanted to place another person in this position, but he could not fire the employee, there was no reason. Then the HR specialist advised the management to carry out an “imaginary” reduction procedure, about which the foreman should be notified 2 months in advance. However, no other vacant positions were offered to the latter, and he was fired. And another person was quickly hired to take this place. Having learned about this, the former subordinate filed a lawsuit against his boss.

It follows from the court decision that if there is a reduction in staff at work, the citizen subject to it must be offered another available position. In this case this was not done. In addition, there was no staffing table indicating a reduction in this profession. In this regard, the judicial authority satisfied the latter’s claim and reinstated him at work, in addition, recovered a sum of money from the employer to compensate for moral damage.

In case of violation of labor legislation, an illegally dismissed person has the right to reinstatement at work. Reduction and subsequent completion labor relations in this case, they can always be appealed through the courts.