What will be paid for the reduction. Severance pay to an employee upon dismissal due to redundancy. If the reduction falls on vacation

If the question of reduction arose, the employer is obliged to send an appropriate notice to employees at least two months before the planned dismissal.

However, many people are already at the stage of talking about changes in the company and are beginning to look for a new job. And they find.

But it often happens that the vacancy suits, the decision to hire has been made, but the employer is already demanding to start performing official duties.

The only way out is to quit your old job as soon as possible.

Or rather, quit - the word is still not quite the same, so as not to be confused with a simple dismissal for own will. Therefore it is better to use term "early termination" labor contract» .

This can be fraught with considerable difficulties. Yes, on the one hand there is Federal Law No. 197-FZ. On the other hand, the consent of the employer not to wait for the indicated two months is precisely that voluntary consent, but by no means an obligation. And here is the most important thing - for both sides! - do not break spears.

Benefits and guarantees

First, downsizing doesn't always mean job loss altogether.. If the management of the company has decided to reorganize, two departments, say, merge into one or this or that position is no longer needed, then the reduced one is offered other options that are similar in functionality. If there are simply none, then - all that is possible.

Secondly, of course, money:

• payment for all hours worked;
• compensation for unused vacations;
• severance pay;
• additional allowance - in accordance with the working days that remain before the reduction;
• average earnings during those two months that the employee entered the labor exchange - until he finds a job.

How to resign?

Actually, the very process of dismissal to reduce staff ahead of schedule at the initiative of the employee will look like as in the standard case:

• the head of the company issues an order to start reducing staff positions, sends it to the personnel department;
• personnel officers are compiling lists of applicants for reduction (Article 179 of the Labor Code);
• those who are “lucky” to get on these lists receive a notice of reduction - this should happen no later than two months before the moment of dismissal;
• if there are those who do not agree to sign the notification (and they have the right to do so), then this does not change the essence of the matter, but nevertheless, an appropriate act must be drawn up. Later, this paper will be included in the employee's personal file;
• a citizen who wants to quit earlier writes an application in the appropriate form and submits it to the office, where it must be registered;
• the head of the firm makes a decision and imposes a resolution;
• an order is issued;
• the employee is paid on the day of his departure, an entry is made in the work book.

Applying

In case of early dismissal with a reduction in staff at the initiative of the employee, as with any other care of one's own free will, have to write a statement. It just needs to be done right.

Many citizens do not know how it will differ in this particular case - and the leaders, of course, are not interested in prompting - and write the usual petition.

And it turns out as a result of the standard, that is, the usual own desire - no benefits, no additional payments, and when the unlucky citizen catches on, it turns out to be too late.

So, in our case, the paper should contain:

Order

If the head of the company does not object to the early dismissal of the employee before the expiration of the warning period, then he issues an appropriate order. The document is drawn up in the first person and contains:

• full name of the company;
• a demand to dismiss (for example, Ivanov Ivan Petrovich, senior manager of the department for working with legal entities) on his own initiative;
• date of dismissal;
• settlement request addressed to the accounting department;
• date, signature, company seal.

The dismissal order in case of staff reduction without working out for two months is presented to the dismissed person under a personal signature, and then registered in the orders journal.

Truth, it is better to play it safe - in order to avoid misunderstandings. To do this, the employer and the outgoing staff need to draw up an appropriate agreement - in two copies, one for each party. It should definitely describe what kind of payments this citizen is applying for and how and when he will receive them.

Now the departing employee can safely go to the accounting department and receive all the money due to him, without fear that he will be reproached for his own desire.

How should I write it down in my workbook?

An appropriate note is entered in the work book of a citizen under the date that was listed in the order of dismissal.

Does the employer have the right not to agree to early layoffs at the initiative of the employee?

What to do if the employer does not want to leave all the guarantees to the employee and let him go without working out with a reduction in staff?

Unfortunately, the law is on the side of the employer in this case - he may agree to such a step, or he may not agree. However, no one can ever keep a person who wishes to leave the company of their own free will (Article 77 of the Labor Code).

And it turns out that there are two ways out: do not resist the refusal of the boss and work out the time set before the scheduled dismissal, or write a letter of resignation with reference to the notorious seventy-seventh article. Which, of course, means automatic deprivation of all additional benefits and payments- except for salary and compensation for holidays, of course. The boss will even gladly sign this statement.

Worse in this case is not even the fact of refusal, but another moment. It is clear that not a single entrepreneur is interested in showering money on the personnel with whom he is parting.

That's why it is better to ask specialists in advance how you best arrange your early termination of an employment contract and then go notify the boss - verbally first.

In general, you need to have a good relationship with the authorities and this moment a very good illustration of that. Because if the merchant is not interested in firing you, as in the standard redundancy procedure, then everything can be used so that you write a statement “on your own”- misrepresentation, direct refusal, and even intimidation.

But even then, don't give up. Theoretically, you can then explain to the court that you were forced to write a statement of your own free will. In practice, this is almost never proven.

If the boss agreed to dismiss, but does not give out the due money, it is necessary to defend your rights. To do this, you can contact the labor inspectorate, the prosecutor's office or the court. In the latter case, it is necessary to enlist the support of an experienced lawyer - this will help to avoid "pitfalls" and other difficulties invisible to the layman's eye.

The lawsuit is filed in the district court general jurisdiction in the number of copies based on the number of participants in the process and must contain:

• full name of the court district;
• date and place of compilation;
• the essence of the problem;
• reasons for early retirement;
• what confirms that the refusal of the boss is precisely illegal;
• links to legislation;
• demanding what the applicant wants from the court;
• list of attached papers;
• signatures.

If a citizen convinces the court that his rights have been violated, the former bosses will have to pay the employee not only the money due upon dismissal, but also compensate for moral and (or) material damage, legal costs.

So it turns out that the main thing in early dismissal on the initiative of the employee is not to rush. Especially when applying. And, of course, it will be better for both parties if they respect the rights and needs of each other and decide everything in a kind way. This will avoid complaints, and showdowns in court, and unnecessary time, financial, and most importantly, nervous costs.

This method of terminating an employment contract is especially distinguished from others. It can rightfully be called one of the most protecting the rights of the employee, not the employer. Although this option is the most laborious.

What the law says

A clear statement of the differences between downsizing and staff reduction the law does not.

In practice, there is only one difference: when the number is reduced, the position is not excluded from the staff list, only the number of persons occupying it changes (there were 5 managers, 2 will remain).

And if the staff is reduced, then the position is generally removed from the schedule (for example, the position of an accountant for materials is excluded, his duties will be performed by a payroll accountant).

Making changes to the staffing table

It is possible to make a reduction in employees only when the position is no longer available in staffing. Thus, you can make changes to the already existing schedule, or develop another one, taking into account all the changes.

The new version of the schedule is approved by the relevant order, which also explains why the need for reduction arose, in what period it will be carried out.

All employees of the company or enterprise should be familiar with this order.

Categories of persons who cannot be reduced

Reducing the number of employees or staff - This is entirely the initiative of the management of the company or enterprise. However, there are benefits for certain categories of employees. More on this will be discussed below.

In general, when reducing, a certain rule applies, which is reflected in the legislation: first of all, those employees who are less qualified and have low labor efficiency indicators are fired. In practice, these are most often employees with the least work experience.

The following employees enjoy the advantage of staying at work:

1. Parents of children with disabilities;
2. single mothers;
3. single fathers;
4. Being the only breadwinner in the family;
5. Injured or prof. diseases at this particular workplace;
6. Persons who received a disability in wars;
7. Heroes of Russia and the Soviet Union;
8. Victims of the Chernobyl disaster;
9. Victims of trials in Semipalatinsk;
10. Undergoing training for which they were assigned by the organization;
11. Employees who patented inventions (USSR legislation applies here);
12. Heads of trade union organizations;
13. Representatives of the team elected by voting who take part in resolving conflict situations with management.

So, it is unacceptable to dismiss by reduction:

1. Persons, ;
2. The employee who has the sick leave;
3. Women who have children under 3 years of age.

This list is not exhaustive; the full list is given in the legislation.

Reasons for layoffs

The law does not directly establish the reasons for layoffs. To make a reduction is the right of the employer, if there are any requiring it economic conditions. But if a dispute arises, the court has the right to check how good the reasons were, whether the reduction was reasonably carried out.

Typically, serious circumstances include:

• Inability to pay wages to a large staff of workers;
• There are positions in the state that are not currently required;
• The production technology is changing, in connection with which some of the employees will not be in demand.

Conditions for dismissal

Their observance primarily concerns the employer, if he does not want to pay fines and compensation to illegally dismissed employees in the future.

• The reduction procedure must be followed strictly. Any deviation from it will entail a lot of negative consequences;
• The dismissal must be justified, and the court has the right to verify this;
• The Employment Service must be notified. Employers who ignore this condition often have to pay for forced absenteeism to dismissed employees, already by court order.

Order and procedure of reduction

Dismissal by reduction is carried out in the following order:

1. The company's management issues an order that it is planned to reduce. And not less than 2 months before the dismissal of employees. Each employee is warned about this personally, and gets acquainted with the order against signature;
2. Employees subject to redundancy should be offered other positions that match their qualifications. It is worth considering that this is done not once, but throughout the entire period until termination;
3. The trade union organization must be notified if it operates in the company. If the layoffs are massive, then reduction notice sent to the trade union for 3 months, as required in its ruling by the Constitutional Court of the Russian Federation;
4. Except trade union organization, the employer warns and the employment service;
5. If the employee does not agree to any of the proposed vacancies, an order is issued to reduce the staff. The refusal of the employee must be in writing and signed by the employee;
6. With the consent of the employee, he may be dismissed before the expiration of the two-month period.

Worker's rights in case of downsizing

Many people are poorly versed in the norms of the law, which sometimes becomes convenient for unscrupulous employers. Taking advantage of this situation, they often violate the rights of employees and do not make all the due payments. To prevent this from happening, it is worth considering this point in more detail.

What does the employee have the right guaranteed to him by law:

• Severance pay in the amount of average earnings per month;
• To maintain this earnings until the moment of finding new job(time limit set);
• On compensation provided for by an employment or collective agreement.

From the above examples, it can be seen that the state protects citizens from layoffs at the whim of the leadership, makes it possible to challenge the dismissal in court if it is illegal.

How are redundancy payments made?

Table 1. Payment procedure

What to do if payments are not made in full

Important information : any delay in payments is a violation of the law!

If this order has been violated, any employee can apply to the court, demanding:

• Compensation for vacation that was not used;
• For sick leave that was not paid;
• For moral experiences;
• Compensation for expenses incurred in contacting a lawyer;
• All % that are due for late payments.

At the same time, you can contact the prosecutor's office. Usually scared employers pay everything. If this is the case, your claim can be dropped.

The statute of limitations for applying to these authorities is 3 months from the date of dismissal.

In any case, you need to carefully study your rights and learn how to protect them.

How to quit more profitable: by reduction or by agreement of the parties

Let's spend a small comparative analysis two types of layoffs. Since quite often employees ask such a question to specialists, it is worth paying attention to its consideration. And the results are presented in the form of a table.

table 2.Comparative analysis of types of dismissal

How profitable it is to quit, everyone decides for himself. You can rely on the criteria given in the table, you can not take them into account. In any case, you need to focus on the situation that has developed for a particular person.

Employer Mistakes

• Pressure on an employee to force him to quit of his own free will. Usually dictated by the unwillingness to make the payments required by law;
• Dismissal of an employee who is included in the preferential category (the categories are discussed above);
• Lack of coordination of the reduction procedure with the trade union (if any);
• Reduction without written notice.

This list contains the most typical and frequently occurring errors. Some of them are interpreted by the legislator as illegal dismissal and have serious legal consequences for an irresponsible employer.

Conclusion

Summing up, we can say that layoffs due to redundancy can affect any person. No one is immune from this, especially if there is a difficult economic situation across the country.

In such a situation, it is important to know your rights and make sure that they are not violated. And if there are certain difficulties, seek help from competent specialists.

Reduction is a fairly legal tool that an employer resorts to in order to “optimize” the staff. But in turn, this can cause a number of problems for the employer and an additional financial burden, so they often resort to a trick - “you have been laid off, write a statement on your own - this wording is better.” It all depends, among other things, on the initiator of the process.

Layoff for downsizing: step by step instructions 2019

Let's see how it goes dismissal due to downsizing. Step-by-step instruction 2019 includes:

Additional Information The final stage of the downsizing procedure is the issuance of orders for the dismissal of employees. Orders are usually issued in the unified form No. T-8. In the column "reason" it is necessary to indicate a link to the order to carry out actions to reduce the number of employees, a notice of reduction, if any, to the details of the document in which the employee wrote consent to terminate labor relations before the expiration of the warning period. Employees need to read this order and leave their signature there.

1. Downsizing cannot be done arbitrarily. An order is required to amend the staffing table indicating the positions that will be excluded.
2. Further, interested parties are notified: the trade union organization, if any. Notification shall be sent at least two months prior to dismissals.
3. Also, at least two months before the reduction, the Employment Center is notified. A list of persons is sent with indication of positions and professions. In case of mass reduction, it is necessary to notify the EPC 3 months in advance.
4. Employees are also notified two months in advance. The notification must be in writing, the employees get acquainted with it against signature. Dismissal of an employee due to staff reduction and before the expiration of the notice period for the reduction, it is possible upon a written application from the employee. Compensation is charged for the period remaining until the expiration of the two-month period.
5. Presence in the organization vacancies obliges the employer to offer these places to laid-off workers. Vacancies may appear within two months from the date of notification, these vacancies must also be offered to employees who have been made redundant. Vacancies must correspond to the qualifications and health status of employees, but the entire list is offered. The procedure is drawn up in writing, if the employee refuses the proposed vacancy, a corresponding entry is made on the proposal form and signed. If the employee agrees to the proposed vacancy, a transfer order is issued.
6. After the expiration of a period of two months, an order is issued to terminate the employment contract, with which it is necessary to familiarize the laid-off workers.
7. The last day of work is the day of dismissal, the employee receives a work book, calculation and certificates of average earnings. At the request of the employee, the employer is obliged to issue other documents related to his work. The basis for dismissal in the work book is entered - dismissal due to staff reduction, paragraph 2, part 1.

Details about layoffs during staff reductions in this video:

General procedure for layoffs for downsizing

In general terms, holding the contraction looks like in the following way.

Decision-making

Any action must always have appropriate documentary support. The decision to reduce must be issued in the form of an order or instruction from the employer. If this order was signed not by the person whose authority includes deciding on the acceptance and dismissal of subordinates, then the reduction may be declared illegal.

If the regulation or charter of the organization states that the director (head of the Main Directorate, manager) hires and dismisses from work, then only he should sign the order starting the reduction procedure. The adoption of such a decision by the deputy will be illegal and can be challenged in court. If at the moment the position is vacant or the boss is on a long vacation or sick leave, you should first assign duties to one of the deputies (indicating, for example, “Due to the need for work” at the base), and only then sign the reduction order.

Union Warning

When reducing, preference should be given to those who have higher labor productivity or more highly qualified. In the first case, it is necessary to consider the results of the certification of all employees, and also take into account the individual performance of each employee. For example, it makes sense to leave the employee who has a lower percentage of marriage.

At the moment, there are no exact criteria by which labor productivity should be determined, and therefore the main factor is the subjective opinion of the employer. In order to avoid conflict situations and accusations of bias, it makes sense to create a commission at the enterprise that will make a collegiate decision on the level of productivity of each employee.

In the second case, the legislator had in mind that if it is required to reduce one of two employees occupying the same positions, but having different qualifications, then the employee with a lower qualification should be dismissed. For example, a department has two accountants. One has a university degree and the other has gone to college. An employee must be left at work with higher education.

If both the qualifications and the productivity of the workers are the same, then preference should be given to:

• to someone who has at least two disabled family members for whom the income of an employee is the main means of subsistence;
• an employee whose family no longer has people with self-employment, for example, an employee who has a disabled mother with whom he lives together;
• workers who are this enterprise received an occupational disease or injury;
• invalids of military operations received in the defense of the Motherland;
• employees who, without interruption from work, improve their qualifications in the direction of the employer.

The sequence of mentioning the grounds for the preferential right to leave at work in Art. 179 of the Labor Code of the Russian Federation does not play any role and does not have any legal significance.

Warn the employment service about future layoffs

Some employers ignore this stage, arguing that if this is not indicated in the Labor Code of the Russian Federation, then it is not necessary to warn the employment service. But such a provision is contained in Art. 25 of the Law of the Russian Federation "On Employment in the Russian Federation", and therefore it cannot be ignored.

The warning period depends on how many employees are planned to be laid off:

• for 3 months - in case of mass dismissal;
• for 2 months - in other cases.

The mass character is calculated in the same way as in the case of warning the trade union.

The warning must be in writing. It should contain information about the profession, position, specialty, qualifications, salary of each employee who is subject to reduction. Most regions have their own form of the form, so it is better to clarify this issue with an employment service employee.

Inform should not be about the changes themselves, but about the possible dismissal of employees. Even if the employee agreed with the proposed position or does not plan to register with the employment center, information about him must be included in the report.

Failure to comply with this procedure may entail the reinstatement of the employee in the position and the payment of a penalty for the time of forced absenteeism. There have already been court precedents, so it is better to spend a little time and file this report.

Warn employees

According to Art. 180 of the Labor Code of the Russian Federation, the employer is obliged to notify the employee in writing against signature of the reduction and offer the remaining vacancies. Please note that the law requires mandatory compliance with a written warning and issuing it to each employee individually. The approved sample of the notice of staff reduction, most importantly, comply with the written form and address the warning to each employee individually.

In practice, the employee sometimes refuses to read the warning. In this case, it is necessary to draw up an act stating that the warning was read aloud to the employee, and sign this document together with witnesses.

You can also send a warning by mail with a receipt receipt and a description of the attachment. Be sure to keep the spine to have confirmation that the employee actually received the warning.

Since the law states “at least two months”, it is possible to warn an employee both 2.5 and 3 months in advance. The main thing is to observe the minimum time frame.

In the warning itself, in order to avoid disputes, it is advisable to indicate the exact date of the reduction.

The warning period is not postponed for the duration of the sick leave, so it makes no sense to “get sick” immediately after receiving the corresponding document.

As a rule, the text of the warning already contains information about the proposed positions. In this case, the employer has the right to offer:

• positions corresponding to the qualifications of the employee. For example, an economist may well be offered the position of an auditor. In this case, the amount of payment can be either lower or higher;
• positions suitable for the employee for health reasons. It is not necessary for a visually impaired person to offer a position in which work with a large number of small details is expected, since this is probably prohibited by medical records;
• work in the same area. In some cases, the employer may circumvent this provision of the law. For example, an enterprise is a single legal entity, but has many territorial divisions in its structure. If in the collective agreement or other documentation, where exactly is workplace for each position, the employer may well offer a place of work located in another region, formally without violating anything.

During the period remaining before the dismissal of the employee, the owner must inform the employee of all vacant vacancies. It is better to do this in writing in order to have appropriate confirmation.

Sample notice of downsizing

If there were no vacancies in the organization when drawing up the notification, this fact should be reflected.

OOO Avtozapchasti
Seller-cashier Ivanova I.I.
Notification
about the upcoming reduction
01.02.2015

Dear Irina Ivanovna!

In connection with the organizational and staffing changes made at Avtozapchasti LLC, a decision was made to reduce the staff (order No. 602 of 01/29/2015), we inform you that position the seller-cashier is reduced.

In accordance with the requirements of part 3 of article 81 of the Labor Code of the Russian Federation, we inform you about vacant positions as of February 1, 2015:

1. Cashier with a salary of 20,000 rubles.
2. Purchasing Specialist with a salary of 25,000 rubles.

If the above positions do not suit you, after 2 months from the date you receive this notice, the employment contract may be terminated due to staff reduction (clause 2, part 1, article 81 of the Labor Code of the Russian Federation).
You have the right to terminate the employment contract before the expiration of two months from the date of receipt of this notice.
Upon dismissal in accordance with paragraph 2 of article 81 of the Labor Code of the Russian Federation, you will be provided with guarantees and compensations provided for by labor legislation.

CEO _______________ Petrov P.P.
______________ Ivanova I.I. got acquainted with the notice.

Issue an order

The order to dismiss is an important act, without which the reduction of an employee is impossible. This issue should be taken with all responsibility, since it is this issue that quite often subsequently dismissed employees dispute in court.

The order must indicate not only the basis and date of dismissal, but also the number of vacation days to be compensated. According to Art. 127 of the Labor Code of the Russian Federation, an employee can write an application and first take a vacation. In this case, the day of dismissal will be the last day of vacation.

As a rule, the order is issued in the T-8 or T-8A form, although the law does not prohibit deviation from the standard form if all the necessary details are met.

Make an entry in a personal card, work book, make a calculation

After signing the order, it is necessary to make an appropriate entry in the personal card and work book of the employee. The entry must duplicate the text of the order, there must be a link to the relevant article of the Labor Code of the Russian Federation.

When filling out an entry in the work book, one of the grounds for reducing the number of employees, or in connection with a reduction in the number of employees, must be indicated.

A job entry might look like this: “dismissed due to the reduction of the staff of the organization, clause 2 of part 1 of article 81 of the Labor Code Russian Federation».

The employee, against signature, acquaints himself with the order, the entry in the personal card, the work book, and also signs in the work book record book, confirming that the book was given to him in his hands. After that, the company makes the final settlement.

According to Art. 178 of the Labor Code of the Russian Federation, the employer is obliged to pay severance pay in the amount of the average monthly wages. The collective agreement may provide for higher payouts upon dismissal due to staff reduction.

Issuance of other mandatory documents

Before a former employee leaves the company, he must receive the following mandatory documents:

1. Employment history. The personnel worker must give it into the hands of the person leaving on his final day of work. During this process, an entry is made in the register of the movement of books that the document has been issued, and the resigning person confirms receipt with his signature. In the event that handover is not possible - for example, the employee falls ill or does not agree with the reduction and refuses to receive the book, then he needs to send a written message. It should contain a request to come and receive a book, or give permission for it to be sent by mail. As soon as such a notification is sent, the personnel worker relieves himself of responsibility for failure to issue a work permit within the prescribed period.
2. Certificate of salary amounts in the form 182n, which was accrued for two years, the previous year of dismissal. It is compiled according to the form developed by the Ministry of Finance.
3. Certificate of contributions to the Pension Fund, which were accrued and transferred during the work. It is drawn up in the form approved in the PF.
4. The employee has the right to request in writing copies or extracts from the internal documents of the company that affect his work. These can be orders for admission, transfer to another position, promotion, etc.
5. Certificate of average salary for employment authorities. It must be issued within three days from the fact that the former employee submitted a written request. The Ministry of Labor offers a recommended form of reference, but the company can develop its own, more suitable for the characteristics of its activities.
6. Certificate of the employee's length of service in the form of SZV-STAZH. If the employer did not issue this certificate, then he can be fined up to 50 thousand rubles.

Timing and amount of compensation

Upon dismissal, a full settlement is made with the employee, while he will not only be given the requested certificates, a work book and terminate the employment contract, but will also make a full cash settlement. The amount given to the dismissed person must include all payments due to him. Among them will be:

1. The amount of severance pay in the amount of the average salary for 1 month.
2. The amount of average earnings paid for the duration of the job search (for 2 months, sometimes 3).
3. The amount of additional compensation (2 more average monthly salaries).
4. Compensation in monetary terms for all unused vacations.
5. Payments for all unpaid sick leave and business trips.
6. Salary for the hours worked (the day of calculation is also paid).

If there were paid, but unused days holidays, money is not returned.

For temporary workers, the amounts are based on two weeks' earnings.

Compensation for unused vacation

In the event that before the dismissal, the employee did not have time to use his another vacation, although he has the right to do so, he must be compensated financially for this. Compensation in this situation is equal to the amount of accrued vacation pay. Additionally, you will have to write an application for the transfer of vacation from the current year to the next.

Payment of the 13th salary in case of reduction

Such a bonus as the 13th salary is available at many enterprises. Employees, not knowing their rights well, sometimes do not even realize that when they are laid off, the employer must pay this bonus to the dismissed person. Even if the reduction occurs in the summer. True, this is only possible if the person has worked in the company for at least a year.

Refusal to pay severance pay by the employer

When an employee is dismissed due to redundancy, an entry is made in the work book reflecting the dismissal precisely due to reduction (number or staff), i.e. p. 2 h. 1 art. 82 of the Labor Code of the Russian Federation. Often there are situations when the employer offers to quit of his own free will or by agreement of the parties, thereby reducing his responsibility for paying severance pay, and in this case, another entry is made in the labor that does not guarantee the payment of severance pay and the employee will not be able to reimburse the amount of the day off benefits.

If in the work book the dismissal comes from the employer for 2 hours 1 of Art. 82 of the Labor Code of the Russian Federation, then the employee on the last day of work can count on wages for hours worked, compensation for vacation, as well as severance pay for 1 month.

An employee can apply for severance pay for the second month if he registers with the employment service within 2 weeks from the date of dismissal and does not receive a job within 2 months. In this case, the employee must apply to the former employer with a request for payment and the basis for it, and attach a work book where there is no record of employment. An application for payment is submitted in 2 copies and both are marked with a mark on the acceptance of the application. Based on the signed application, the head issues an order for payment. If the payment is refused, then you can attach an application with the date of registration to the application to the court. According to the Labor Code of the Russian Federation, there are no deadlines for submitting an application for payments for the second month.

Payments for the third month of severance pay can also be received from the employer, but not on your own application, but on the basis of the decision of the employment service inspector. Such a document is mandatory, but the timing of payments for the third month is not specified.

Can I quit my job early

Often there are situations that immediately after receiving a warning about the reduction, the employee begins to look for work and finds it. What to do in this case, because before the expiration of the two-month period, another candidate can fill the vacancy?

In this case, the employee may exercise the right to terminate the employment contract ahead of schedule. The employee must write an appropriate application indicating the exact date of termination of legal relations, and the employer must satisfy it. The text of the statement must be ambiguous:

1. The request must be clear and detailed.
2. The date of termination must be clearly stated and that the employee is familiar with the termination procedure.
3. Indicate which vacancies were offered.
4. Indicate that the employee wishes to quit earlier and does not claim compensation payments due to him.

If an employee leaves before the notice period, in addition to salary and compensation for non-vacation leave, he must be paid wages for each working day that he did not finish before the end of the notice.

What to do if labor standards have been violated

It is worth noting one important point - redundancy dismissal most often leads to violation of various labor standards. This is due to the great complexity of the procedure for the employer, the need to make payments to employees already suspended from work and some features of the Labor Code or the contract itself.

Three of the most common violations occur:

• the employer fired a pregnant woman or a mother with a small child;
• the employer withheld salary, compensation, bonus;
• the employer refused to pay subsequent compensation within two months.

However, it does not matter which norms were violated, since the method of combating injustice is always the same - contacting the Labor Inspectorate. The Labor Inspectorate is the main supervisory body that ensures that employers and employees comply with labor standards. Therefore, if you are faced with some kind of violation, then it is worth contacting this service.

In order to file a claim with the labor inspectorate, you can:

• fill out the form on the official website;
• prepare a complaint and file it in person;
• write a claim and send it in the form of a letter.

After the labor receives the appeal, an examination will be carried out. If the fact of violation is actually discovered, the inspector will issue a resolution and force the employer to act according to the law. If the employer does not comply with the requirements, then using the resolution labor inspectorate you can sue him.

Appealing actions by an employee in court

In case of misconduct, the employee has the right to sue and appeal the decision. To do this, within a month from the date of receipt of a copy of the dismissal order (or receipt of a labor, or from the date of refusal to receive an order or labor under Article 392, part 1 of the Labor Code), it is necessary to file an application with the district court to recognize such dismissal as unlawful, and also recovery from the employer during his absence of the amount of average earnings.

By decision of the court, the employee may be reinstated at his previous place of work and may also recover in his favor the amount of compensation for the time of absenteeism. In particular, they can change the wording according to which the employee was dismissed to dismissal of his own free will (parts 3, 4 of article 394 of the Labor Code), as well as award moral compensation.

The procedure for dismissal by reduction: employers' mistakes

The dismissal of staff due to the reduction of staff positions is a strictly regulated process, so the employer must take into account all the nuances before starting the procedure. Common Mistakes faced by inexperienced reduction initiators:

1. Pressure on staff. Realizing that the employee who is subject to reduction has a list of guarantees, managers are trying by all means to force a person to write a letter of voluntary resignation. Often, methods such as threat and psychological pressure are used.
2. Inclusion in the list of a citizen who belongs to a preferential category. As already noted, not all employees are subject to reduction, and the employer must take this into account.
3. Inconsistency. Any redundancy measures must be agreed with the union. This is directly stated in the Labor Code of the Russian Federation.
4. without written notice. Written notification of citizens included in the list of reductions is the responsibility of the initiator.

The list is not exhaustive, since each reduction process is individual. In some cases, disputes are of a material nature: the employee is not properly paid cash bonuses, severance pay, etc.

At the same time, employers, understanding the essence of their actions, do not go for a confrontation, but choose a more cunning approach: they promise the employee that a salary or bonus is about to be accrued, they ask to meet the management halfway, they say, the enterprise is at risk of complete bankruptcy. In general, the whole policy is aimed at delaying the process.

How to fire a layoff correctly: answers to common questions

Question #1

Is severance pay paid to a redundant employee if he works part-time in another organization?

In this situation, the employee will continue to work part-time, that is, he is employed, but the employee retains the right to severance pay upon dismissal (average monthly earnings for the first month from the date of reduction). If the employee continues to work part-time, the average monthly salary for the second month after the reduction should not be paid to him.

Question #2

Is it necessary to make payments to pensioners when laying off workers?

A pensioner is the same employee as others, therefore, the employer is obliged to keep the employee's average earnings for the first and second months after dismissal due to reduction. For the third month, it is taken into account that the pensioner receives income in the form of a pension, so payments will not be made.

On the video about the order of reduction

To begin with, we will give a definition of severance pay and indicate the cases in which it is charged.

This allowance is an accrual made by the employer in favor of an employee who has stopped working in a company to reduce the number or staff.

This is the main condition for accrual.

If a specialist leaves the company not at the request of the organization's management, but, for example, gross violation- in other words, "under the article" - such compensation will not be assigned to him.

The employee must be notified 2 months before the term of dismissal, and also familiarized with the list of free suitable vacancies, if any.

Payments accrued to an employee upon dismissal under paragraph 2 of Article 81 of the Labor Code of the Russian Federation include:

• financial compensation for unused vacation;
• basic severance pay;
• the amount of average earnings received by an employee while working in the company;
• if, by mutual agreement between the employer and the employee, the latter is dismissed early due to a reduction, he is entitled to additional compensation.

Severance pay is an amount equal in value to the average value of earnings received by an employee while working in a company.

This payment is made so that the employee, after the reduction, has a means of subsistence and has the opportunity to find another job.

It should be noted right away that these guarantees are provided only to individuals who are officially employed under an employment contract.

Also, severance pay is not assigned if there is a reduction in the position for which the employee is registered part-time.

This is due to the fact that the specialist loses only one of the jobs, while maintaining a job in the company. The main position remains with him.

How is redundancy benefit paid?

When paying severance pay and related compensation, the first and main document is an order to make accruals to an employee in connection with dismissal under paragraph 2 of Art. 81 of the Labor Code of the Russian Federation.

But besides it, the procedure for payments during the reduction of an employee cannot be implemented if there are no additional official papers.

So, how is severance pay paid in case of reduction?

Since severance pay is calculated from wages and the number of working days, to calculate the total amount you will need:

• the staffing table of the company, according to which the number of working days is determined;
• position on wages;
• employment contract.

The latter also determines by what coefficients the severance pay will be calculated.

In some cases, the company provides employees with additional guarantees in the form of increased severance pay compared to the standard established by law.

The length of the contract also affects the amount of payment. If available fixed-term contract, the validity period of which does not exceed two months, the need to accrue severance pay is determined by the internal documents of the company and the terms of the employment contract.

Terms of payment of severance pay in case of reduction

Financial accruals do not have to be done completely in one day. The term of payments for the reduction of an employee, in particular, may be on the day of dismissal. The employer is required to make the following types of payments:

• wages of the dismissed employee;
• monetary compensation for unspent vacation;
• the main severance pay, in no way tied to further employment and equal in size to the average monthly earnings of the employee.

After termination, within the first month, the redundancy compensation procedure does not include the payment of additional benefits to the former employee.

In some organizations, when concluding an employment contract, the employer prescribes a condition for reducing the state in advance, because the procedure for paying severance pay upon dismissal may include an increased severance pay.

In this case, the management of the organization is obliged to fulfill the terms of the contract and pay exactly the increased severance pay, and not the minimum standard.

Another feature concerns seasonal workers. For them, the size of the severance pay is the value of the average earnings for 14 days.

Let's highlight the calculation of payments related to the release of an employee from job duties by abbreviation:

1. With salary no changes occur- Salary, as well as additional bonuses and allowances. The employer does not have the right to cancel due to reduction.
2. Average earnings are calculated as the arithmetic mean- the sum of all accrued salaries for 12 months is taken and divided by the number of months.
3. For severance pay- the amount of average earnings is multiplied by the number of paid days. Weekends and holidays when the employee is not working.
4. Vacation compensation is calculated from the value of the worked period. If an employee was engaged in temporary work that takes no more than a couple of months, 2 days are supposed to work for a month.

Example

Let's look at how payments occur when an employee is laid off using an example.

If a specialist received 15,000 rubles a month and worked 250 days a year, his average earnings per day would be:

(15000 * 12) / 250 \u003d 720 rubles.

Since he is entitled to severance pay, calculated from the standard work schedule, the resulting figure is multiplied by the number of working days per month. When running 5/2 it would be:

720*23=16560 rubles.

What to do next as a specialist after dismissal?

As mentioned above, after receiving the basic payments on the day of the reduction, the dismissed specialist is given a month to look for a job.

At the same time, he must register with the employment services within the first fourteen days after the expiration of the employment contract. Otherwise, an individual will be denied additional benefits if a new job has not been found.

If, after a two-month period has passed from the moment of dismissal for reduction, the former employee brings a work book to the company, where there will be no record of new employment, he will need to write an application for an additional payment.

The employer, on the other hand, will need to provide the reduced employee with the amount of average earnings for the time of job search and employment.

In the case when the employee got a job during the second month, he is entitled to a payment in a smaller amount. Its value is calculated from the number of days that have passed before a new job is received.

The provision of this allowance is regulated by article 178 of the Labor Code of the Russian Federation, part 1.

In some situations, an employee may require severance pay for the third month after dismissal.

How is redundancy compensation calculated? Receiving this compensation is permissible only if there is a document issued by the employment service and confirming that the employment center could not employ the registered individual.

Severance pay cannot be considered wages. For this reason, the payment terms do not have to be tied to the date of receipt of the salary according to the regulations of the company. The terms of accruals are agreed with the former employee.

The dismissal of an employee at the initiative of the employer differs from leaving of his own free will by an increased number of obligations of the organization to the former employee.

Since it was the company that caused the loss of a job and a stable income individual, it needs to be responsible for respecting the rights of the worker.

Severance pay is a guarantee that former employee there will be means of subsistence until he finds a new job with the help of the employment service.

Among other ways to terminate an employment contract, redundancy is highlighted. The fact is that, among other types of dismissal provided for by Labor Code(Labor Code of the Russian Federation), this is the most time-consuming, but at the same time, perhaps, the most guaranteeing the observance of the rights of the employee.

Tom, what employees and employers need to know when laying off staff, I dedicated this article.

The dismissal of an employee to reduce staff in the Labor Code of the Russian Federation is included in Article 81, which considers all cases when an employment contract is terminated by an employer.

○ Downsizing.

✔ Labor Code on dismissal due to staff reduction.

Article 81 of the Labor Code of the Russian Federation combines both cases of dismissal for absenteeism, violation of discipline or labor protection measures, and cases when an employee quits, although he is not guilty of anything (these include, in addition to reduction, the liquidation of an organization, for managers, their deputies and chief accountants - change of the owner of the organization).

The Labor Code of the Russian Federation does not decipher the difference between downsizing and downsizing. In practice, the difference is also insignificant and consists only in the fact that with a reduction in the number of staff, the position in the staffing table remains, but there will be fewer employees in it (for example, instead of three managers in the department, one remains).

When the staff is reduced, a specific position is generally excluded from the schedule (for example, the position of a personnel officer is abolished at an enterprise, and his duties are transferred to an accountant).

✔ Who can and cannot be made redundant?

Despite the fact that the reduction in the number or staff of employees depends entirely on the initiative of the enterprise's management, the law provides for certain benefits for a number of categories of employees.

I will tell you more about them below. In the meantime, I will say that when reducing, there is a rule about preferential retention at work. Art. 179 of the Labor Code of the Russian Federation provides that, in the event of a reduction, it is necessary, first of all, to dismiss workers with lower qualifications and with lower labor productivity.

In practice, this usually means that lay off first of all workers with less work experience because seniority usually implies experience.

The reduction should take into account the results qualifying exams, education of the employee (in the same position, an employee with a higher education will have an advantage over a colleague with a secondary special education), as well as the indicators achieved by each of the employees in the previous period.

The Labor Code of the Russian Federation and other acts also require that the following employees enjoy the advantage when leaving at work:

• Having disabled children.
• Single mothers and fathers.
• The only breadwinners.
• Disabled or occupational disease obtained from this enterprise.
• War invalids.
• Heroes of the USSR and the Russian Federation, holders of the Order of Glory.
• Victims of the Chernobyl disaster and the Semipalatinsk tests.
• Increasing qualifications in the direction of the organization, combining training with work.
• Employees-inventors (oddly enough, the USSR Law “On Inventions in the USSR” is still in force in this part).

In addition, some employees cannot be fired at all by the employer except at their own request, by agreement, or for misconduct.

With regard to the reduction, in addition to the usual beneficiaries, members of the leadership of trade unions not lower than the shop level cannot be dismissed.

It is prohibited to dismiss elected representatives of the team of employees who are involved in resolving disputes with the employer.

✔ The main reasons for the reduction.

The law does not directly establish in which cases the employer has the right to reduce the number or staff of employees.

The Constitutional Court of the Russian Federation, in its ruling No. 867-O-O of December 18, 2007, established that this is the right of the employer in cases where economic necessity requires it.

However, in turn, the Supreme Court of the Russian Federation, by ruling No. 19-В07-34 dated 03.12.2007, introduced a rule that in the event of a dispute, the court has the right to check the necessity and validity of the reduction.

Thus, an employer wishing to take such measures must order about the reduction, indicate for what reasons the dismissal is made.

As a rule, the reasons forcing employees to lay off are:

• Low profit of the enterprise and the inability to pay salaries to the former staff.
• The low efficiency of the former staff and the presence of positions that are not needed.
• A change in technology or organization of production, in which part of the workers is unclaimed.

✔ The necessary conditions.

Dismissals of employees for reduction are possible subject to the employer's compliance with a number of conditions

1. Full and strict compliance with the reduction procedure provided for by law.
   If the enterprise previously concluded collective agreements with employees, or the employment contracts of the dismissed contain additional guarantees upon dismissal, they must also be observed.
2. Justification for dismissal.
   As already mentioned, in the event of a dispute, the court has the right to check whether the dismissal was justified economically and organizationally.
3. Employment notice.
   Separately, this item should be highlighted, since some employers manage to completely forget about this requirement, as a result of which they are then forced to pay fines and pay employees for forced absenteeism.

✔ The order, procedure and rules of dismissal for reduction.

Reduction of staff for any enterprise is a rather complicated procedure, and violation at any of its stages is fraught with a fine or legal proceedings for the employer.

Dismissal must be done in the following order:

1. The management of the enterprise issues an order on the planned reduction at least two months before the employee is to be fired (Article 180 of the Labor Code of the Russian Federation). The fact that the reduction is expected, each of the employees subject to dismissal is warned personally and, against signature, gets acquainted with the text of the order. However, the redundancy order should not be confused with the order to dismiss a specific employee - such orders are issued much later, when the term of dismissal approaches.
2. Employees who are subject to reduction, the management of the enterprise is obliged to offer any other position that meets the qualifications of the dismissed employee. It should be remembered that the offer of another job is not a one-time action: the employer is obliged to notify the dismissed of the vacancies opening at the enterprise until the very termination of the employment contract. The employee is obliged to either accept the offer and continue working in another position, or refuse - and the refusal must also be recorded in writing, with the date and signature of the employee.
3. The employer notifies the trade union organization, if such exists at the enterprise. The notice period is the same as for employees, but if a mass layoff is planned, the union should be warned not two, but three months in advance. This rule was established by the decision of the Constitutional Court of the Russian Federation. In turn, the trade union must express its opinion on the dismissal within seven days. If the trade union does not agree to the reduction of workers, then, according to the law, within three days positions need to be aligned. If, in this case, no agreement was reached, the employer has the right to dismiss the workers, but the trade union can appeal this decision to the Federal Labor Inspectorate (Rostrudinspektsiya). The inspectorate, in turn, may recognize the dismissal as illegal and demand the reinstatement of the dismissed person at his former place of work with payment compensation and for forced absenteeism. The decision of the Federal Labor Inspectorate can be appealed by the employer to the court.
4. In addition to the trade union, the employer warns the employment service within the same time frame (two, with mass layoffs - three months).
5. If within two months the employee has not agreed to any of the vacancies offered to him, the employer issues a dismissal order to reduce staff. The order is usually issued in the unified form T-8. In this case, the employee is given employment history, a salary is paid for the days worked of the last month of work and compensation for unused vacation days (depending on the time worked since the last vacation). The most important thing is that the employee, in accordance with Art. 178 of the Labor Code of the Russian Federation, severance pay is paid. Its size is not less than the average monthly salary, but under an employment contract or a collective agreement with employees, the allowance can be increased.
6. If the employee, after being fired, was registered with the labor exchange, but was not employed, the former enterprise continues to pay him the average monthly salary for two months (but with the deduction of the already received severance pay).
7. If the employee agrees, he can quit on a reduction and before the expiration of the two-month period. In this case, the employer pays him, in addition to the severance pay, also a salary for the time not worked between the day when he actually quit and when he was supposed to quit according to the employer's plan. Besides, employment contract or the collective agreement may provide for other payments for downsizing.

1. Order on the planned dismissal for reduction - at least two months in advance;
2. Warning of the employment service and the trade union organization (if there is one at the enterprise) - at least two months in advance, in case of mass layoffs - at least three months.
3. The deadline for paying wages for the worked part of the month, compensation for unused vacation and severance pay is no later than the day of dismissal.
4. Payment terms average salary for an employee registered with the employment service, but not employed - up to two months.

Violation of these terms can lead to a fine for individual entrepreneurs - up to 50 minimum wages, for legal entities- up to 500 minimum wages.