Many workers face a situation in which you could be laid off, especially now when the economic situation in the country is somewhat unstable. From the moment an employee is informed that he will be laid off, he has a lot of questions in addition to where to look for a new job: are there any payments due? If yes, in what size? What if I am a pensioner or a pregnant woman? How should the dismissal procedure proceed?
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Staff size optimization
First, you need to understand the basic theoretical issues that the reduction procedure raises.
It is necessary to clearly understand the difference between downsizing and downsizing. Thus, the number of employees is the entire payroll employees of a particular enterprise. If we are talking about downsizing, then the number of employees in a certain position is reduced. For example, it is necessary that there are two engineers at the enterprise instead of the currently available ten.
The staff usually includes all management and administrative employees at a particular enterprise.
When reducing staff, identical positions or employees of the entire unit being reduced must be excluded from the staffing table. When it comes to reducing a certain staffing position, it is not just one employee who quits, but everyone who, according to the staff schedule, performs work in a certain position.
Legislative grounds If the enterprise has a question about the need to reduce the number or staff of employees, then on the basis of paragraph 2 of paragraph 1 of part 81 of article 81 of the Labor Code of the Russian Federation, this is the determining factor for early termination employment contract
with specific employees.
To begin the dismissal procedure on this basis, you must make sure that all actions are carried out within the framework of the law, i.e. the employer is obliged to refer to the fact that the company really needs to make reductions.
In addition, in accordance with Article 179 of the Labor Code of the Russian Federation, it is necessary to respect the right of some employees (for example, a pregnant woman and those who have higher qualifications) and the order of reduction. It is imperative that an employee who is notified of an upcoming layoff must be provided with alternative vacancies (if any at the enterprise) taking into account his abilities, qualifications and health status. In accordance with By the decision of the Constitutional Court of the Russian Federation, dated December 18, 2007, serial number 867, no employer is obliged to in any way justify his decision that he needs to make a reduction. He independently makes decisions that he considers economically beneficial for his enterprise. Third-party organizations
, first of all, the court, when making a decision on the complaint of a dismissed employee, cannot decide the question of whether it was necessary to reduce staff. For example, the court is only authorized to resolve the situation regarding the legality of the dismissal procedure. In practice, there are often cases when in court the employer still has to justify his decision and refer to certain documentation of the organization.
Payments upon dismissal of an employee
In the case where the employee to be laid off has familiarized himself with the document, but categorically refuses to sign it, a special document must be drawn up that reflects this fact.
During the period from introduction to dismissal, the employee must be offered other available positions in accordance with his skills and abilities. If he refuses the proposed options, then after two months the employment contract is terminated. The next stage after termination is the final settlement with the employee.
Severance pay
Severance pay, as well as other payments, must be transferred to the employee on his last working day. The same time is set for the transfer of the work book.
What is severance pay upon dismissal? This is the payment of a certain amount of money to a dismissed employee from an enterprise that optimizes the number of employees through a reduction procedure.
Severance pay includes the amount of average monthly earnings, taking into account additional deductions.
The employee is also entitled to similar amounts for the next two months after dismissal until employment (calculation is made taking into account the amount of severance pay). In exceptional cases, the employee will be paid for the next three months after dismissal (within 2 weeks from the date of official dismissal, the employee registered with the labor exchange).
Amounts due to the employee as severance pay, on the basis of paragraph 3 of Article 217 of the Labor Code of the Russian Federation, are not subject to taxes, except for the case when the amount of payments exceeds 3-month average earnings.
The calculation of average earnings due for payments is made on the basis of Article 139 of the Labor Code of the Russian Federation, as well as the Decree of the Government of the Russian Federation, dated December 24, 2007, serial number 922. billing period 12 calendar months preceding the day of dismissal are accepted. When the average is calculated, a person's entire earnings are taken into account based on how much they were actually paid.
The amount of average earnings must take into account:
- Premiums and bonus payments, rewards. No more than one type of additional remuneration per month during the calculated period is taken into account. If there are more bonus amounts, then you can take them into account in the month where there were none;
- Remunerations based on the results of the year, in connection with length of service, length of service, etc.;
- Other payments included in the monthly salary.
The main rule for calculating the amount of average earnings: it should not be below the threshold living wage established in the country on the day of dismissal.
If the employee subject to redundancy has not worked for 12 months at this enterprise, then the entire period of service must be taken into account when calculating the amount. If the work time was not even one month, then for the calculation it is necessary to take the amount of his tariff rate or official salary.
The following periods are not taken into account when calculating average monthly earnings:
- when the employee did not receive the entire amount worked, but only the average payment for his work (such periods cannot include the time when a woman, in accordance with the Labor Code of the Russian Federation, can leave workplace for feeding a child);
- sick leave time, as well as social leave provided in connection with pregnancy and childbirth;
- when the employee was not at work due to circumstances beyond his control;
- when there was a strike (the employee did not participate, but could not work);
- additional time provided to a person to care for a disabled child;
- time when the employee was not at his workplace for any other reason.
The amount of earnings includes all payments from the employer, including bonuses, products in kind, as well as other payments.
Compensation
Severance pay is not the only amount a person will receive upon dismissal. So, he is entitled to some additional compensation.
For example, if an employee notified according to the rules expresses a desire to leave the enterprise early, he informs the employer about this, and he, in turn, must calculate an additional amount in the form of compensation for the time that he did not use after the notification.
Those. If the dismissed employee worked for 5 days after notification (instead of 2 months) and expressed a desire to be dismissed earlier, he must receive additional compensation in the amount of average earnings for the time not worked until the end of the notice period in the case where the employer agrees to let him go in advance. Also, be sure to make sure that you are paid wages for the time worked at the company, as well as unused vacation (if it was actually not used).
If you were laid off due to a reduction in headcount or staff, then know that you have the right to maintain your average earnings for the next two months after the day you were officially laid off. This rule is valid until the moment of official employment, but no more than two months after dismissal. Thus, an unemployed person has some guarantees provided for him by the state, in order to provide him with a certain amount of money until he gets a new job.
If an employee applies for employment to the Employment Center within two weeks after dismissal, he can count on another extra month of subsidies from the former employer (if he did not find a job).
The decision to extend the period is made by the Employment Center, and the payment is made at the expense of the former employer. This kind of additional benefit remains until the person is officially employed (during these 2-3 months). As soon as a citizen finds a new job, payments stop. If a person starts a new job in the middle of the month, then the previous employer only reimburses unemployed time.
For pensioners
For persons who have reached retirement age and have been laid off, the Labor Code in 2020 does not provide for any specific payment requirements.
So, a dismissed pensioner can count on:
- Severance pay, which is equal to average monthly earnings. If the employer’s local regulations provide for a slightly larger amount, then the pensioner should receive exactly this amount.
- Compensation of average earnings for two (three) months while the search is underway new job.
We remind you that reaching retirement age is not the main criterion for dismissing such employees in the first place.
By law, they have exactly the same rights to further work or payment of benefits in the event of layoffs as other employees. In addition, persons who have reached retirement age have higher qualifications and productivity, which, on the contrary, can be attributed to positive point against the dismissal of such an employee.
How to get a?
Decor
Based on current legislation, all settlements with the employee regarding remuneration for time worked and severance pay must be processed and made on the last day of work of the employee subject to staff reduction. Moreover, before this day he must submit a bypass sheet drawn up according to the rules with information that he has no debts to the enterprise.
In order to receive amounts due in the next two (three) calendar months after dismissal, it is necessary, at the end of the month during which the dismissed employee did not find a new job, to contact the former employer for a settlement.
In this case, the employee must confirm his words with documents (provide a certificate from the Employment Center, demonstrate work book). Only after this can the settlement department employee begin processing payments. If such documents are not provided, no compensation will be provided.
Where are they paid?
All payments due to an employee who has been laid off are paid by the employer at the employee’s previous place of work.
To begin with, we will define severance pay and indicate the cases in which it is accrued.
The specified benefit represents accruals made by the employer in favor of an employee who has stopped working in the company due to a reduction in headcount 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, for a gross violation - in other words, “under the article” - he will not be awarded such compensation.
The employee must be notified 2 months before the dismissal date, and also be familiarized with the list of available 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 for the company;
- if, by mutual agreement between the employer and the employee, the latter is dismissed due to early layoffs, he is entitled to additional compensation.
Severance pay is an amount equal to the average salary received by an employee while working for the company.
This payment is made so that the employee, after being laid off, has a means of subsistence and has the opportunity to find another job.
It is worth immediately noting 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 assigned part-time.
This is due to the fact that the specialist loses only one of his jobs, while maintaining his job in the company. The main position remains with him.
How is redundancy pay paid?
When paying severance pay and related compensation, the first and main document is an order to make accruals to the employee in connection with dismissal under clause 2 of Art. 81 Labor Code of the Russian Federation.
But besides this, the procedure for payments when an employee is laid off cannot be carried out if there are no additional official papers.
So, how is severance pay paid during layoffs?
Since severance pay is calculated based on wages and the number of working days, to calculate the total amount you will need:
- the company's staffing schedule, according to which the number of working days is determined;
- wage regulations;
- 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 size of the payment is also affected by the duration of the contract. If available fixed-term contract, the validity period of which does not extend beyond two months, the need to accrue severance pay is determined by the company’s internal documents and the terms of the employment contract.
Terms of payment of severance pay in case of reduction
Financial accruals do not have to be made entirely on one day. The deadline for payments when an employee is laid off, in particular, may be on the day of dismissal. The employer is required to make the following types of payments:
- salary of the dismissed employee;
- monetary compensation for unspent vacation;
- basic severance pay, in no way tied to further employment and equal in value to the employee’s average monthly earnings.
After dismissal during the first month, the procedure for paying compensation for dismissal due to staff reduction 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 staff, because the procedure for paying severance pay upon dismissal may also include an increased severance pay.
In this case, the management of the organization is obliged to fulfill the terms of the contract and pay the increased severance pay, and not the minimum standard one.
Another feature concerns seasonal workers. For them, the amount of severance pay is the average earnings for 14 days.
We will highlight the calculation of payments related to the release of an employee from labor responsibilities by abbreviation:
- WITH wages no changes occur- both the salary and additional bonuses and allowances are maintained. The employer does not have the right to cancel due to layoffs.
- 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.
- For severance pay- the amount of average earnings is multiplied by the number of paid days. Weekends and weekends are deducted from the calculation. holidays when the employee was not working.
- Vacation compensation is calculated based on the period worked. If an employee was engaged in temporary work that took no more than a couple of months, 2 days are allowed per month of work.
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 daily earnings will be:
(15000*12)/250=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 working 5/2 it will be:
720*23=16560 rubles.
What should a specialist do next after dismissal?
As mentioned above, after receiving basic payments on the day of layoff, the dismissed specialist is given a month to find a job.
At the same time, he must register with the employment services within the first fourteen days after the end of the employment contract.
Otherwise, the individual will be denied additional benefits if a new job has not been found.
The employer will need to provide the laid-off employee with the amount of average earnings for the duration of the job search and employment.
If the employee is hired during the second month, he is entitled to a smaller payment. Its value is calculated from the number of days that have passed before receiving a new job.
The provision of this benefit is regulated by Article 178 of the Labor Code of the Russian Federation, part 1.
In some situations, an employee may need 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 confirming that the employment center was unable to employ the registered individual.
Severance pay cannot be considered wages. For this reason, the timing of payment does not necessarily have to be tied to the date of receipt of salary according to company regulations. Accrual terms are agreed upon with the former employee.
Dismissal of an employee at the initiative of the employer differs from resignation due to at will an increased number of responsibilities of the organization to the former employee.
Since it was the company that caused the loss of a job and stable income individual, she needs to take a responsible approach to respecting workers' rights.
Severance pay guarantees that the former employee will have a means of subsistence until he finds a new job with the help of the employment service.
When an organization ceases operations or needs to downsize for a compelling reason, the employer can voluntarily dismiss an employee.
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How to correctly formalize dismissal due to staff reduction in 2020? When dismissing an employee in order to reduce the number of employees, it is necessary to comply with applicable rules and regulations.
You need to complete the process correctly and pay everything due compensation. How is the dismissal procedure carried out in 2020 when there is a reduction in numbers or staff?
General points
First of all, the employer needs to know that wrongful dismissal can cause very negative consequences.
An employee can file a lawsuit within a month after dismissal in order to appeal the employer's decision.
The following may be claimed as a claim:
- reinstatement;
- changing the wording of the notice of dismissal in;
- compensation for forced absence.
Satisfaction of the claim depends on the availability of evidence presented by the parties.
So the court will not be able to reinstate the plaintiff if he does not fall into the category of employees who are not subject to dismissal or when carrying out a procedure according to the law.
The employer has the right to argue that there are no violations on its part. Confirmation of the legality of dismissal of an employee is:
How to correctly carry out the staff reduction procedure in 2020?
What it is
Downsizing involves reducing the number of positions or the number of personnel.
For example, an organization employs several people in the same position, but after layoffs, one or two employees remain.
From a logical point of view, everything is simple. The employer decided that it was necessary to reduce the number of employees and fired the excess employees.
But from the position labor law the situation is complicated by the need to comply with certain rules. Staffing refers to the total number of positions existing in an organization.
Accordingly, staff reduction means that some positions are eliminated from the staffing table.
And since the organization does not have a position appropriate for the employee, the extra employee may be fired.
But among other things, there are nuances regarding the dismissal of certain categories of citizens. Thus, some persons, due to their status, cannot be dismissed except.
Therefore, when staffing is reduced, it is necessary to offer such employees other vacancies. Dismissal is allowed only in the event of an absolute lack of suitable positions or if the employee refuses to transfer.
The general reduction scheme looks like this:
1. The employee is notified of the upcoming layoff.
2. Management issues a dismissal order.
3. Dismissal is carried out with full payment.The main reasons for the need
To legally implement a staff reduction, it is necessary to have sufficient justification that will convince the labor commission. The employer must prove that he has no other choice but to eliminate the position.
The law provides the following reasons for dismissal at the initiative of the employer in connection with staff reduction:
- termination of the organization's activities and its complete liquidation;
- reduction in the number of employees or positions due to certain circumstances.
It is worth noting that many enterprises, when reducing staff, prefer that employees resign of their own free will.
This is explained by the fact that in this case no severance pay needs to be paid. Upon dismissal due to staff reduction, the following must be paid:
- salary for days actually worked;
- compensation for unused;
- average salary for the period of employment.
Employee rights
When making a layoff due to staff reduction, you need to be aware of some features.
In particular, we are talking about workers' rights. For example:
If the employee is on vacation or sick leave Then you can reduce it only after returning to work. You can dismiss such an employee at your own request. Age discrimination is unacceptable When people of retirement and pre-retirement age quit solely because of their age. Workers in this category usually have an advantage due to their extensive experience Partners have the same rights Just like regular workers. They quit at general principles and have similar rights to payments Early dismissal of a redundant employee is possible only with his consent Moreover, the part of the salary that he would have worked before the set date of reduction must be paid. Important! An employee must receive notice of layoffs no later than two months before the layoff. During this time, the employee can find another job and resign early.
Who can't be fired
When an employee hired for seasonal work is laid off, he must be notified no later than 7 days before the date of dismissal.
Payment procedure and terms
In case of staff reduction, payment deadlines must be met. But there is no need to pay all due amounts on one day.
Immediately on the day of dismissal, the laid-off employee must receive:
- accrued wages for all days worked;
- compensation for unused vacation;
- one month's severance pay.
A month after the layoff, the dismissed employee is not entitled to any payments. But after the second month, the laid-off employee can receive compensation in the form of monthly pay.
To do this, the employee must provide the former employer with no new employment record.
For your information! Receiving compensation due to the lack of other work after layoff is possible only if the dismissed employee has registered with the Employment Center and received official status.
Moreover, you should contact the central protection center within two weeks after the layoff. In some cases, the employer must compensate for the third month after dismissal.
Video: the staff reduction procedure - what it looks like and its nuances
The basis is a document issued by the Employment Center about the impossibility of employment. Compensation for the second and third months is paid within the terms agreed with the recipient.Since this payment is not a salary, it is not necessary to pay it on the day when working employees receive their wages.
What nuances may arise?
When planning staff reductions, the employer should be aware of the intricacies of dismissal. The nuances concern the moments when an employee cannot be dismissed without the consent of certain structures or when compensation for absence from work is paid even after the expiration of the standard two-month period.
As a rule, the features concern the least protected categories of the population - pensioners and minors.
These categories of workers are primarily considered by the employer if it is necessary to reduce staff or eliminate certain positions, but the state strictly guards the interests of these individuals.
For pensioners
According to labor law, employees who continue to work in retirement are laid off in the standard manner and on generally accepted grounds. There are no differences as such in the dismissal of a pensioner.
But at the same time, a dismissed pensioner, if he contacts the Employment Center and does not find a new job, has the right to demand compensation for lack of work for the third month after dismissal.
In addition, in some cases, a pensioner can receive up to six months. The decision to award payments is made by the court.
In this case, various circumstances are assessed, such as the level of income of the pensioner, the importance of continuing labor activity etc.
For minors
Regarding minor citizens labor legislation contains quite a lot of nuances. This includes the employment procedure, acceptable types of activities, and level of responsibility.
That is, it can be quite difficult to employ a minor citizen. But it is even more difficult to fire such an employee.
Tatyana Shirnina, senior lawyer at the Department of Labor Law of the Institute of Professional Personnel, explains what mistakes employers most often make when reducing staff, what needs to be taken into account when dismissing different categories of employees, and what guarantees and compensations are due to those being dismissed.
Common mistakes
If speak about typical mistakes when abbreviated, these include:
- absence (non-delivery) of notice of reduction;
- dismissal of an employee before the two-month notice period;
- failure to notify employment authorities and trade unions (if any) in deadlines;
- failure to offer vacancies when available.
When it comes to reducing the number of employees, a fairly common mistake is failure to conduct or incorrect assessment of the preemptive right (). For example, employers often have no criteria for assessing labor productivity and qualifications at all, or these criteria are recognized by the courts as subjective.
Who can't be laid off?
How and why to prove the fact of reduction
The burden of proving the fact of layoff lies with the employer. The launch of the reduction procedure begins with a decision by the authorized person of the company to carry out the reduction.
Such a decision must be made in writing. This could be, for example, or. Based on this decision, the staffing schedule is published and directly changed. It is these documents that will serve as proof of the reduction.
In addition, since labor disputes most often arise after dismissal due to a reduction in the number or staff of employees, the court will also examine the fact of whether, after dismissal, he was hired for the same position. new employee. In this case, the reduction may be considered illegal (“imaginary”). From this we can conclude that the fact of a reduction can be proven by the absence of a position in staffing table, valid at the time of consideration of the dispute.
Why is a redundancy commission needed?
Legislatively, the employer has no obligation to create a redundancy commission, but from a practical point of view, its necessity is beyond doubt.
First of all, it is needed to determine the categories of employees who are not subject to layoffs. In addition, the work of this commission is advisable in assessing the preemptive right. The staff reduction commission reviews the information provided for each candidate for dismissal. Decision for employees who are not subject to layoffs and have a preferential right to remain at work, it is drawn up in writing - a protocol, a decision, etc.
The commission is created using an order authorized person. The commission usually includes HR specialists, one or two workers who are members of a trade union (if the company has one), and lawyers.
Seasonal workers and conscripts
The legislation provides for specifics in the procedure for laying off seasonal workers and workers who have entered into a fixed-term employment contract of up to 2 months. Please note that for other employees with whom a fixed-term employment contract has been concluded for other reasons, the reduction procedure is similar to that provided for employees with whom an employment contract has been concluded for an indefinite period.
The specifics of laying off seasonal workers and workers with whom a fixed-term employment contract has been concluded for up to 2 months relate to the timing of delivery of notice and payment of benefits.
Thus, an employee engaged in seasonal work must be notified of his upcoming dismissal due to a reduction in the number or staff of the organization’s employees at least 7 calendar days in advance.
For employees who have entered into an employment contract for a period of up to 2 months, the period is even shorter - they must be notified of the upcoming layoff at least 3 calendar days in advance.
As for the payment of severance pay to these categories of workers upon dismissal, for seasonal workers the amount of the benefit is equal to the amount of two weeks’ average earnings. And for employees who have entered into an employment contract for a period of up to two months, severance pay upon dismissal general rule not paid unless otherwise stated federal laws, collective agreement or employment contract.
Dismissal of an employee upon change of ownership
First of all, it is worth noting that a change of owner does not automatically terminate the employment contract with existing employees.
The categories of employees with whom the employment contract can be terminated and the period during which dismissal can be effected are limited. Employees with whom employment relations can be terminated on the grounds provided for (change of owner of the organization’s property) include the head of the organization, his deputies and the chief accountant.
The period during which the new owner has the right to terminate the employment contract with the above-mentioned persons in connection with a change in the owner of the organization’s property must be no later than 3 months from the date his ownership rights arise.
A change in the owner of the organization's property is not grounds for terminating employment contracts with other employees of the organization.
If the new owner decides to carry out a reduction, then starting this procedure is allowed only after state registration transfer of ownership.
Guarantees and compensation
When an employment contract is terminated due to a reduction in the number or staff of the organization's employees, the dismissed employee is paid a severance pay in the amount of average monthly earnings. He also retains his average monthly salary for the period of employment, but not more than 2 months from the date of dismissal (including severance pay).
In exceptional cases, the average monthly salary will be retained by the employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after dismissal the employee applied to this body and was not employed by it.
Advantages and disadvantages
Of course, layoffs are not a pleasant thing for an employee, especially during a crisis in the labor market. But still, a reduction, in contrast to voluntary dismissal, has a plus - it is severance pay, paid in the amount of average monthly earnings and retained by the employee for at least two months.
For the employer, the advantages are obvious - his initiative, that is, the employee cannot refuse, further optimization of expenses and reduction of the fund for wages. However, such a procedure will only further reduce the fund, since the reduction procedure itself is expensive.
Mass layoff
In order for an employer to understand whether there is a mass layoff, they should refer to industry and (or) territorial agreements. He talks about this.
So, for example, in Moscow, according to the Moscow tripartite agreement for 2016-2018 between the Moscow Government, Moscow trade union associations and Moscow employers' associations, the criteria for mass dismissal are considered to be the indicators of the number of dismissed employees of organizations registered in the city of Moscow, with a workforce of 15 or more people for a certain period of time:
- dismissal within 30 calendar days of more than 25% of employees from total number working;
- dismissal of employees in connection with the liquidation of an organization of any organizational and legal form;
- reduction in the number or staff of the organization's employees in the amount of:
- 0 or more people within 30 calendar days;
- 200 or more people within 60 calendar days;
- 500 or more people within 90 calendar days.
Other nuances
Basically, all labor disputes are related to appealing the reduction procedure, so it is better to create a commission before starting the procedure, prescribe the reduction procedure step by step and assess the risks and costs in advance.
Please note the reduction in certain categories of workers - minors and union members. There are also special considerations for these employees during layoffs.
In addition, we additionally recommend making sure that the employee will not be on vacation on the date of dismissal. It is impossible to control whether an employee is on sick leave on the date of dismissal, so you should not indicate a specific date of dismissal in the notice of layoff. It is better for the wording to be general, for example, “...after two months from the date of delivery of this notice, the employment contract with you will be terminated on the basis provided for in clause 2, part 1, art. 81 of the Labor Code of the Russian Federation."
Often employees completely refuse to sign and accept a layoff notice; in this case, it is better to document this fact in the presence of at least two witnesses from among the employees.
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