Pays redundancy benefits. What payments are due when an employee is laid off? Conditions for dismissal

How often do we hear from friends: “They’re laying off at work...” or “I got laid off. Do you know what payments are due?” Indeed, today, due to the unstable market situation, many companies are reducing production volumes, mastering unfamiliar methods and technologies in order to increase demand for services and goods, and keep the company afloat. All this inevitably leads either to a reduction in unnecessary staffing positions, or simply to a reduction in numbers. What payments are due in the event of a layoff, what the procedure and nuances are - we will sort this out today.

Dismissal due to reduction

A reduction in the number of employees of an enterprise or number is one of the reasons for terminating an employment contract (hereinafter referred to as EA) at the initiative of the employer. Therefore, the worker must be paid appropriate compensation. What payments are due to an employee upon redundancy will be discussed in more detail later, but now let’s look at the essence of this procedure and its features.

Dismissal in itself is not a very pleasant event, especially when it is not related to the employee’s fault or his desire, but is carried out due to forced circumstances. In this case, these are usually a reduction in production volumes or the replacement of manual labor with automatic ones.

The reduction is not made suddenly, since this is a conscious, thoughtful step by management, formalized in the form of an appropriate order and communicated to employees in advance. Therefore, you should also know in advance what awaits you after dismissal, as well as what payments are due in case of staff reduction.

Quantity or staff?

The manager has the right to change the staff and structure of the enterprise himself; accordingly, he can eliminate unnecessary positions.

Thus, a reduction in staff is an exception from the corresponding staffing schedule; downsizing is a reduction in the composition of employees for a specific position.

Naturally, vacancies must initially be eliminated, and only then the question of laying off real workers arises.

Dismissal is considered legal if the following conditions are met:

• the grounds comply with the Labor Code of the Russian Federation;
• order is maintained;
• the employment contract is terminated;
• payments have been made (if required by law).

The main thing when making redundancies is to respect the rights and guarantees of the employee, otherwise he will be able to challenge the procedure in court.

Currently, the servants of Themis often take the side of workers, since both the process and the interests of workers are grossly violated, for example, payments required by law are underestimated.

Briefly about the procedure

1. Issuance of a reduction order.
2. Notification of the trade union body in writing 2 months in advance (IP - 2 weeks in advance), 3 months in advance in the case of the opinion of this organization is not mandatory for the employer, but should be adhered to. The criterion for mass dismissal is given in the relevant regulatory act. If minors are laid off, the consent of the State Labor Inspectorate must be obtained.
3. Written warning to employees about future dismissal - 2 months in advance (under signature and individually). Other deadlines are provided for certain categories: for seasonal work - 7 calendar days; those employed in work for up to 2 months - 3 days; without warning - with the written consent of the employee with the accrual of additional compensation. This document can be served by mail. If the employee refuses to sign it, an appropriate act must be drawn up in the presence of two witnesses.
4. Offer of vacant positions (including lower paid ones). This can also be issued in the form of a notice, which the employee must familiarize with signature and date; in case of refusal, the corresponding entry must be made. The employer must offer positions in another location when this is provided for in an agreement (collective or labor agreement).
5. Registration of transfer to new positions for employees who agreed to this. An additional agreement to the TD is printed and an order is issued.
6. The TD is terminated due to reduction. An order is issued, an entry is made in the work book, and it, together with the payment, is handed to the employee on the last day.

This is the procedure for dismissal due to reduction. We will tell you below what payments are due and who has the right to count on them.

Severance pay

This term can be defined as a monetary payment provided for by the labor legislation of the Russian Federation, paid upon termination of a contract on the basis of a reduction in staff or headcount.

These compensations are basic and additional.

The amount of severance pay is equal to the employee’s average monthly earnings, which is calculated in accordance with the requirements of the Labor Code of the Russian Federation.

What payments are due when an employee is laid off? Upon termination of a labor contract on this basis, the worker is accrued the above allowance, and also receives his average earnings for the time he takes a new job, but no more than 2 months from the date of dismissal.

At the initiative of the employment authority, the salary for the 3rd month can be maintained, provided that the employee is registered within 2 weeks after leaving and has not yet been employed for objective reasons.

The period for contacting the employment center may be extended when a citizen could not come there for good reasons. If they cannot offer him a job (including pensioners), a certificate is issued, according to which the employer retains the employee’s earnings for the 3rd month.

If a person refuses a job offer twice without good reason, then the above document is not issued and the earnings are not saved.

What payments are due when a position is reduced? This question can be answered similarly to the previous one, since the elimination of a position is also a reduction in staff.

The first benefit is paid in advance upon dismissal, subsequent benefits - during the corresponding months.

Additional compensation

What payments are due in case of staff reduction if the employee agreed to terminate the contract before the expiration of 2 months?

Firstly, this fact must be confirmed by a written statement from the employee, otherwise the dismissal may be considered illegal.

Secondly, in this case, the employee is awarded an additional payment in the amount of his average salary, calculated in proportion to the period remaining before the expiration of the notice of dismissal.

Contracts, labor or collective, may establish other, increased amounts of compensation, which in no case infringe on the rights of workers in comparison with the provisions of labor legislation.

More than once at a legal consultation you can hear the following question: what payments are due when a pensioner is laid off? That is, people assume that payments also differ depending on how long a person has worked and what merit he has. In reality, the status of a pensioner does not affect the amount of severance pay, but the fact of having significant experience can be taken into account when choosing among employees.

Special conditions

In addition to the general grounds for assigning payments, there are special ones provided for certain categories of workers, for example, for seasonal work employed in the Far North and similar areas.

So, in these cases, what payments are due upon dismissal from work:

• for workers in temporary (seasonal) jobs - a benefit in the amount of average earnings for 2 weeks;
• if the TD is concluded for a period of up to 2 months, then no payments are made;
• for workers in the Far North and similar areas - as a general rule, earnings are retained for up to three months, in special cases, by decision of the employment authority - up to 6 months if they are registered within a month.

Such extended terms are provided for the latter category of employees, since these regions are very remote, which creates difficulties for employment.

The provisions of the Labor Code of the Russian Federation on the reduction procedure and payments also apply to persons working part-time.

At the same time, the average salary for the period of employment is not retained for them, since they also work at their main job.

Who takes advantage

When it comes to downsizing, all factors are taken into account. Preference is given to persons with high labor productivity and qualifications.

The latter is confirmed by relevant documents: a diploma of education, a certificate of advanced training, retraining, etc. Qualification is an indicator of an employee’s professional skills, experience, skills and knowledge. There are categories and ranks. Qualification category - level of professional training; category - degree of education and work experience.

Labor productivity remains at the discretion of the employer; he has the right to set his own criteria on the basis of which to conduct selection. It seems that a person with high labor efficiency is a person who most quickly, efficiently and skillfully performs the functions entrusted to him.

Thus, in the case where labor productivity and qualifications are identical among workers, the following categories will have an advantage:

• disabled people of the Second World War;
• disabled combatants in defense of the Motherland;
• family with two or more dependents;
• persons whose other family members do not have their own income;
• employees with health damage or occupational illness acquired from this employer;
• who improve their qualifications on-the-job at the direction of the employer;
• others under a collective agreement.

What payments are due for the reduction of these categories of people, if they still had to be fired? The same as ordinary citizens, without any privileges.

Who can't be laid off?

The Labor Code of the Russian Federation does not allow dismissal due to reduction of the following persons:

• pregnant women;
• women with children under 3 years of age;
• single mothers with a child under 14 (disabled - up to 18);
• other persons raising these children without a mother.
• parent (legal representative of the child) - the sole breadwinner of a disabled person under the age of 18 or a child under the age of 3 in a large family (children must be minors), if the other parent (legal representative) does not work under a TD.

The legislator provides such labor benefits specifically to support motherhood and childhood.

At the same time, the category of pregnant women is almost untouchable. Even if at the time of issuing the order to retrench or after receiving a notification it turns out that the woman is expecting a child, it will not be possible to retrench her. If she has already been fired, then she must be reinstated in her previous position. Of course, the employer has the right to request a medical certificate to confirm this fact.

When an employee is on vacation or sick leave, he cannot be fired either!

Reduction by agreement

Recently, employers often try to cheat and circumvent the law in order not to pay severance pay by asking the employee to leave by agreement of the parties or on their own initiative.

Let's see what payments are due when an employee is laid off in this way:

1. At your own request: salary + compensation for unused vacation.
2. By agreement of the parties: salary + vacation pay + additional payment by agreement of the parties

And compare them with dismissal due to staff reduction. What payments are due? Salary + vacation compensation + severance pay + average earnings for the 2nd month (+ salary for the 3rd month, if there is no work, according to the decision of the OZN).

It can be seen that an employee dismissed due to redundancy always receives more monetary benefits, so it is better for the employer to fire him on the first two grounds rather than drag out this burden. However, in this case the guarantees provided for by the Labor Code of the Russian Federation are violated. In any case, the choice always remains with the employee.

If through the court...

So, let’s turn to the question of what payments an employee is entitled to in the event of a reduction in staff if he decides to go to court.

Indeed, not all disputes are resolved amicably; sometimes you need to stand up for yourself and go to the labor inspectorate or directly to court.

Let's say you were offended by the amount of severance pay, or were not paid at all, or you think that you were illegally fired due to layoffs, then you should go to the servants of Themis. You set out your demands in the form of a statement of claim and submit them to court.

Remember that the statute of limitations for labor disputes is 3 months, and if dismissal is disputed - 1 month.

What can you win in court, what payments are due if you are made redundant in this situation?

1. Earnings for all days worked.
2. Compensation for unfulfilled vacation.
3. Severance pay.
4. Average earnings for the corresponding months.
5. Compensation for moral damage.
6. Salary for forced absence (in a situation of illegal dismissal and reinstatement).
7. Legal expenses, including attorney fees.

From the above list it is clear that going to court is always associated with additional expenses, such as legal fees, postage, etc. In addition, of course, litigation requires time and effort. Therefore, before going to court, you need to weigh all the pros and cons and evaluate the chances of winning with a professional lawyer.

As a general rule, claims for the recovery of amounts must be submitted to the court at the location of the employer, while applications for the restoration of labor rights can be submitted to the court at the plaintiff’s place of residence. If an employee works in a branch or representative office, then at their location. The dispute may also be considered in court at the place of execution of the contract.

So, to summarize, we will determine what payments an employee is entitled to in case of staff reduction in any case:

• severance pay;
• average earnings for the 2nd month of job search, regardless of the reasons for non-employment, even if you refused the offered vacancies.

These compensations must be mandatory, the rest are additional.

Thus, if you are also affected by such an unpleasant phenomenon at work, you need to be savvy in order to defend your rights. That is why you should definitely understand how the dismissal procedure is carried out, what payments are due upon layoff, what to do if the law is violated, in what cases to go to court, what is the period for protecting rights. A legally competent person is protected in any situation.

The timing of payment of redundancy benefits depends on how quickly the employee was hired after dismissal. Read about how severance pay is paid for 1, 2 and 3 months in this article.

What payments are due to laid-off employees?

Dismissal under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation does not exempt the employer from standard payments, such as wages and compensation for unused vacation.

The latter is paid in full if the work experience is 5.5 months or more (subparagraph “a”, part 3, paragraph 28 of the rules, approved by the NKT of the USSR dated April 30, 1930 No. 169).

The calculation of length of service for the purpose of determining the right to leave, and sometimes the amount of compensation, is made taking into account the following rules of Art. 121 Labor Code of the Russian Federation:

• it includes days actually worked, days on sick leave, days at study, weekends, holidays, etc.;
• for additional leave for harmfulness/specialty/severity of conditions, only days actually worked are counted.

In addition to the above, the employer pays severance pay to laid-off employees as provided for in Art. 178 Labor Code of the Russian Federation.

An enterprise can set any benefit amount, but it must be at least 1 average monthly salary.

The legislator established the upper limit for the amount of severance pay in Part 4 of Art. 349.3 Labor Code of the Russian Federation. For certain categories of employees (managers, chief accountants in state corporations, etc.) it cannot be more than 3 average monthly salaries.

IMPORTANT! An increased amount of severance pay can be established on an individual basis, in an employment contract with a specific employee (except, as mentioned above, the management team of state-owned enterprises). This will not be discrimination against other employees (determination of the Supreme Court of the Russian Federation dated September 10, 2010 No. 14-B10-10).

Allowance and average monthly earnings: what is the difference

Part 1 art. 178 in conjunction with Part 4 of Art. 84.1 of the Labor Code of the Russian Federation establishes the deadline for the payment of severance pay - the last working day of the dismissed (redundant) employee.

With the help of this payment, the loss of a job is compensated, but the former employee has the right to receive it further - in the second and third months after leaving. Only in the latter case will it be called not a benefit, but average monthly earnings for the period of employment (hereinafter referred to as SMZ), and its essence will be the maintenance of the employee during the period of absence of a source of income (work).

So, severance pay is an amount equal to or greater than the average monthly salary, paid one-time upon dismissal. And the SMZ is transferred in the future, upon appropriate request from the employee, but with severance pay included in this payment.

The size of the SMZ is clear from its name, and within what time frame it is paid, read on.

Periods of unemployment paid by the former employer based on average monthly earnings

How is SMZ paid:

1. If the former employee has not found a job within 2 months after dismissal, he has the right to receive SMZ upon request.
2. If it was not possible to find a new job even in the 3rd month, then in order to receive an SMZ, he must present to the former manager a certificate from the employment center, according to which he (the employee) contacted the employment service immediately after the layoff and there were still no vacancies for him.

For workers laid off from enterprises in the Far North and those equivalent to them, the procedure differs in terms of the number of payments. Upon request, SMZ is paid for 2 and 3 months after dismissal, and due to the lack of vacancies (which is confirmed by the employment center) - for 4, 5 and 6 months (Article 318 of the Labor Code of the Russian Federation).

It is not established in the Labor Code of the Russian Federation within what time frame the employer pays SMZ when an employee applies. This point is explained in paragraph 12 of the regulation, approved. Resolution of the USSR State Labor Committee, the secretariat of the All-Russian Central Council of Trade Unions dated March 2, 1988 No. 113/6-64: these payments are made on the days when salaries are paid at a given enterprise in accordance with the local act.

Since there are no other acts establishing the terms of these payments, one should be guided by this rule.

Is the benefit subject to personal income tax and insurance premiums?

According to paragraph 3 of Art. 8, sub. 2 p. 1 art. 422 of the Tax Code of the Russian Federation, severance pay is subject to insurance contributions for that part of the payment that exceeds:

• 3 average monthly salaries in general cases;
• 6 average monthly salaries of an employee leaving northern enterprises.

The same rule applies to SMZ.

Personal income tax is calculated and withheld in the same order: an amount less than 3 (6) average salaries is not taxed, and the portion of it exceeding the established limit is charged with personal income tax (clause 3 of Article 217 of the Tax Code of the Russian Federation).

If the actual dismissal occurs ahead of schedule (within 2 months calculated from the date of notification of the upcoming layoff), then the employer pays another compensation in the amount of the average salary (Part 3 of Article 180 of the Labor Code of the Russian Federation).

This is an independent payment and is not included in the amount of severance pay. No insurance contributions are made from it, and personal income tax is not withheld.

How to calculate severance pay and reflect its payment in accounting

So, the minimum amount of severance pay is the average monthly salary, which is calculated as follows (see the regulation approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922):

1. All salaries, bonuses and other income that were paid by this employer in the 12 months before the month of dismissal are summed up.
2. The resulting amount is divided by the days worked in the billing period, resulting in the average daily earnings (ADE).
3. SDZ is multiplied by the number of paid days. Not all days in the month following dismissal are paid, but only working days.

In accounting, the payment of benefits is reflected in the following entries:

• Dt 20 (26, 44...) Kt 70 - benefits accrued.
• Dt 20 (26, 44...) Kt 69.1, 69.2, 69.3 - insurance premiums were charged for the amount of benefits that exceeded the limit.
• Dt 70 Kt 51 - payment of benefits to the employee.

IMPORTANT! If an employee was dismissed due to layoffs and reinstated by a court decision, the severance pay is not returned to the employer, but is counted as compensation for forced absence (Article 1109 of the Civil Code of the Russian Federation, clause 62 of the Russian Federation PPVS dated March 17, 2004 No. 2).

Can an employer not pay severance pay?

Yes, this is possible in 2 situations:

1. If the employer is an individual entrepreneur, Art. 178 of the Labor Code of the Russian Federation does not apply. Severance pay is paid if such a guarantee is provided for in the employment contract (clause 9 of the Review of Judicial Practice No. 4, approved by the Presidium of the Armed Forces of the Russian Federation on November 15, 2017).
2. In labor relations where the contract is concluded for a period of less than 2 months, redundancy benefits are not paid to the employee (Part 3 of Article 292 of the Labor Code of the Russian Federation).

There is one more reason for non-payment of the specified guarantee: if during routine activities it was discovered that, through the fault of the employee, the employment contract was drawn up with violations (Part 3 of Article 84 of the Labor Code of the Russian Federation).

During layoffs, seasonal workers, in contrast to the generally established one, are paid only 2-week average earnings (Part 3 of Article 296 of the Labor Code of the Russian Federation).

The Labor Code of the Russian Federation contains a rule on compensating an employee for loss of a job in connection with regular activities carried out - payment of severance pay.

The benefit is calculated according to a formula determined by the Government of the Russian Federation and is paid:

• 1 month in advance - on the day of dismissal;
• for 2 and 3 - on the day of salary payment in this organization.

Benefits are not subject to insurance contributions if they do not exceed the limit established by the tax legislation of the Russian Federation.

About when it is permissible for an employer to reduce staff - in the article

You work for yourself, you work, and then suddenly - the boss announces a reduction in staff. Unfortunately, many have encountered this situation.

Many questions immediately arise that require clarification. For example, what payments should an employee receive if he is laid off? What is the legal way to fire an employee? Is it possible to lay off pensioners and pregnant women?

Your position is no longer needed

One of the first questions that arises when an employee is laid off is: “What payments am I entitled to?” A similar situation occurs in both large and small companies. By law, layoffs must be announced no less than two months in advance.

The employee must sign that he was notified on time. If an employee refuses to sign, a special act is drawn up. If this rule is not followed, the person may be reinstated in his position. Once signatures are received, the company is required to offer new vacancies that match the employee's specialty.

When the two-month period comes to an end, the employment contract is terminated and payments are made to the employee in case of staff reduction. He is given a benefit in the form of an average salary. It is retained for the duration of employment (but not more than two months).

Retrenchment of an employee. Payments. Labor Code

This topic is regulated by Article 178 of the Labor Code of the Russian Federation. What she's talking about:

1. An employee who is laid off is paid benefits. Its amount is equal to average monthly earnings.
2. On the day of dismissal, the company is obliged to pay the employee all outstanding wages. As well as compensation for unrealized vacation.
3. Within sixty days after the layoff, the person is paid an average monthly income.
4. If he contacted the employment service no later than two weeks from the date of dismissal, but did not find the required vacancy, then, by decision of this body, the payment of compensation in the event of a layoff is extended for another month.
5. The payment of money must be made on time, otherwise the dismissed person may challenge his rights in court.

More about amounts

So, what payments are accrued to an employee when staffing is reduced? Firstly, this is financing in the form of average monthly income. It is paid within a period of up to 60 days. Secondly, a benefit that is issued immediately at the time of dismissal.

Thirdly, the manager is obliged to compensate all arrears of wages, as well as unused vacation. Fourthly, in special cases, the employee may be accrued two weeks' average income. This applies to moments when he does not agree to transfer to another service in cases considered in the legislation. Also, payments to an employee upon layoff are made in connection with:

• with his conscription into the army;
• with the reinstatement of the person who previously held this position (returning from maternity leave or appealing through the court);
• with refusal to move to another area;
• with his recognition as incapable of work;
• with refusal to work due to changes in the terms of the contract.

Here you need to remember that personal income tax is not withheld from the obligatory amounts. The company is obliged to pay monetary compensation both in the event of liquidation of the company and in case of violations in the drafting of the employment contract (if they were not caused by the fault of the employee).

Collective and individual agreements preserve payments when an employee is laid off. The timing of the issuance of all due money is limited to the last day on which the employee is still registered in the organization. If there is a delay in payments, then for each day they accrue interest of at least 1/300 of the refinancing rate of the Central Bank of the Russian Federation.

Law violation

The fact of illegal dismissal is often encountered in everyday life. The employer wants to save his money and can take advantage of ignorance of labor laws. Anyone who has been laid off, having collected evidence of a violation of his rights, can always file a claim in court. The filing deadline is thirty calendar days from the date of receipt of a copy of the dismissal order or issuance of the work book. Valid reasons for being late in filing a claim may increase the time it takes to accept a claim. Also, a reason for filing a lawsuit is the refusal to pay interest on overdue compensation due to the worker.

Conditions for the “correct” reduction

If the manager decides to reduce the number of employees, then a number of rules must be followed:

1. Real reduction of workers. The fact of dismissal is entered into the organization's staffing table. An order is also issued to approve the new schedule.
2. According to Article 179 of the Labor Code, it is necessary to provide in writing a number of other vacancies that correspond to the employee’s qualifications.
3. According to Article 180 of the Labor Code, the boss must notify the employee no later than two months before dismissal. The employee must sign that he was warned on time. The manager also approves the plan for communicating information about the reduction. In this case, a newspaper, bulletin board, meeting can be used.
4. A selective trade union body must consider the issue of dismissal. It consists of a lawyer, a personnel director, and a representative of the trade union committee. An order is also issued regarding the creation of the commission.
5. According to Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004, the responsibility to confirm the legality of dismissal and compliance with its procedure lies with the head of the organization.

Who should not be fired

Based on Article 261 of the Labor Code, a pregnant woman cannot be laid off. If she works under a fixed-term contract, the company is obliged to renew the agreement after this period. The woman will only need a medical certificate confirming her situation.

But it can be reduced in the case when it was registered with the organization during the absence of the previous employee, and there is no possibility of transfer to another vacancy. Women who have children under three years of age and single mothers with a child under 14 or a disabled child under 18 are also not subject to dismissal.

There is one nuance in the field of education. As for the reduction of teaching staff in educational institutions, this action is possible only after the end of the school year.

Useful subtleties

1. Calculation of payments when laying off an employee who is a part-time employee is not made. The reason for this is the presence of a principal place of business.
2. A worker who has been laid off has the right to receive an early pension. At the same time, he must issue it no earlier than two years before the legal date.
3. If an employee has worked in an organization for less than six months, then compensation payments for unused vacation when the employee is laid off are still made.
4. Severance pay is not subject to the unified social tax, pension contributions, or personal income tax. As well as insurance contributions to the Social Insurance Fund. Compensation for unrealized vacation days is subject to personal income tax, but not unified social tax.
5. If payments to an employee upon layoff are not made from budgetary funds, then they are taken into account as part of the expenses going towards wages. Thus, the income tax is reduced (clause 9, article 255 of the Tax Code of the Russian Federation).
6. An employer can fire an employee without warning, but all payments must be retained. An agreement of this kind, however, like all others, must be drawn up in writing. If the worker and the head of the organization do not come to an agreement, then the reduction should occur on a general basis.

Retrenchment of an employee. What payments are accrued? Calculation example

Let's take the following example. The employee began his career on 09/01/07 and was laid off on 04/23/09 (received a notice from his superiors). He resigned on 6/24/09. For 12 months, the salary amounted to 126 thousand rubles. Start of work in the new organization - 09/05/09. We will calculate the average earnings, the amount of benefits and compensation for unrealized vacation.

So, what is the procedure for payments when an employee is laid off?

First, we will calculate the benefits due. To do this, divide the entire salary amount by 12 months and by the number of working days. We get average earnings per day - 357.14 rubles. We multiply this figure by thirty calendar days and get 10,714.2 rubles.

Secondly, we will calculate the amount that will be paid over several months. Since the employee did not get a new job in the first of them, the amount of severance pay goes towards the retained average income. In this case, a mandatory payment of average earnings is made during the second month. The benefit amount will be 11,071.34 rubles (average daily earnings multiplied by 31 calendar days). There will be no payments for the third month, since the employee has joined a new organization.

Thirdly, we will calculate benefits for unused vacation. Based on the fact that the employee worked for ten months, compensation will be paid in 23.33 days. We multiply 28 vacation days by the number of months worked (10) and divide by their number in a year (12). Multiplying the resulting figure by the average daily earnings, we get the entire amount of payments - 8,332.08 rubles.

Early dismissal of an employee

Article 180 of the Labor Code states that employees of organizations are notified of layoffs two months in advance. The same article contains a clause that states that a boss, by agreement with a subordinate, can terminate an employment contract without waiting for the stated date. All payments in case of early dismissal of an employee are preserved. But he will lose compensation if the basis for termination of the contract is a notice of voluntary dismissal. Thus, in order for early layoffs to occur with all legal payments, the following must be done:

1. The manager issues a proposal to the employee to cancel the employment contract before the official dismissal date.
2. The employee writes written consent to this proposal.

Compensation payments when an employee is laid off are not made if the application states “I ask you to dismiss me of my own free will.” Or there is a letter from the new manager requesting a transfer to another organization. If the application states “I request to be dismissed due to the reduction of my position before the expiration of the term,” then the mandatory consent of the employer will be required.

Going to court

Since it is beneficial for the employer to dismiss an employee at his own request, psychological pressure may be exerted on the latter. And this is a reason to go to court. Coercion to write a statement will need to be proven. When considering a labor dispute, the court pays attention to the following points:

1. What are the reasons for writing a statement - the employee’s own desire or coercion.
2. What are the circumstances of its registration?
3. How clearly the appeal is written and whether it contains the necessary details.
4. What are the worker's intentions?
5. What is the dismissal procedure?

If the court finds the termination of the employment relationship illegal, then the manager is obliged to reformulate the grounds for dismissal, as well as make all payments to the employee upon layoff. The option of reinstatement to the previous position with monetary compensation for forced absence is also possible.

Dismissal of a retired employee

When laying off a retired employee, the following payments must be made:

1. Compensation for unused vacations.
2. Benefit.
3. Maintaining average earnings for the duration of employment for no more than two months. If the organization is located in the Far North region, then up to three.

If an employee gets sick while looking for a new job

An employee has the right to submit sick leave to the manager or to the territorial body of the Social Insurance Fund within thirty days from the date of termination of the employment relationship. Sick leave is paid in the amount of 60% of the employee’s average income.

Reduction under a fixed-term contract

According to Article 79 of the Labor Code, this type of contract is liquidated upon expiration of its validity period. The boss must inform the employee within three days and always in writing. Seasonal workers must be given seven days' notice. They are also entitled to benefits in the amount of two weeks' average wage. If, after the expiration date, the contract was reissued as indefinite, then the employee is subject to dismissal on a general basis.

Sometimes a situation occurs when an employee is fired due to staff reduction. The company's management has the right to do this, however, it is necessary to know all the nuances in order to carry out the procedure according to the law, what compensation payments are due to such an employee and who does not have the right to fire.

Initially, it is necessary to clarify that the employer must announce dismissal to the employee due to staff reduction at the enterprise no less than two calendar months before this date. Moreover, notification must be in writing and the employee must sign for familiarization. If this is not done, he has the right to be reinstated in his position by law. Afterwards, the company must offer the employee a new vacancy corresponding to his specialty, if any.

After this period, the employment relationship between the employer and the employee is terminated and payments due for staff reduction are issued in the form of an allowance, which is his average monthly salary. This benefit is paid until the employee finds a new job, but no more than within two months from the date of dismissal.

Let's take a closer look at the correct procedure for registering an employee's dismissal and what payments are due upon layoffs.

Dismissal procedure

This procedure is strictly regulated by law and must occur in a strictly sequential order.

Initially, an order is drawn up for the enterprise to reduce staff. Then it happens official notification to the employee or employees about dismissal and offering them another vacancy (if available). After this, it is imperative to notify the trade union and the employment service. At the end of two months, it is necessary to dismiss the employee and pay him benefits.

An order to reduce staff has nothing to do with an order to dismiss. This is the starting point, after which the manager has the right to begin the process of reduction, notification of employees, etc. There is no approved form for such an order, however, it must indicate the date of the upcoming reduction, positions that are planned to be reduced and changes in the staffing table.

After issuing this order, it is necessary to notify the employee or employees whose positions are subject to reduction, but not less than two months in advance. It is issued in writing separately for each employee, in which they are required to sign for receipt. In the notice there must be a date the proposed dismissal, its reason and the offer of other vacancies suitable for the employee according to his specialty, if any.

An important nuance - if at the time of notifying an employee about a reduction in staff there are no vacancies suitable for him, but such vacancies subsequently appear until the day of dismissal, the company is obliged to offer them to the employee. The employee has the right to accept the proposed new position or refuse it.

If the enterprise has a trade union, the employer must notify him of the layoff even those employees who are not members of it, at least two months before the date of dismissal. If for any reason there is a threat of mass layoffs, this period is increased to three months. The same rules exist for reporting planned staff reductions to the employment service.

Upon direct dismissal of an employee an entry is made in the work book that the employment contract was terminated due to a reduction in the organization’s staff on the basis of clause 2, part 1, article 81 of the Labor Code of the Russian Federation.

And now, in more detail, what payments are due to an employee upon layoff.

Entitled payments

According to the Labor Code of the Russian Federation (Article 178), an employee who has lost his position due to staff reduction at the enterprise is entitled to a benefit equal to his average monthly earnings. He must receive this benefit no later than six days from the date of dismissal. In addition, on the day of dismissal the employee is obliged to receive all back wages and compensation for unused vacation.

Within two weeks from the date of dismissal, the former employee has the right to contact the employment service to look for a new job, and if he does not find a suitable vacancy, the company is obliged to pay him another compensation, also equal to the average monthly income. The decision on re-payment of benefits is made by the employment service. An employee has the right to receive such payments for no more than two months from the date of dismissal and only if he has not found a suitable vacancy with the help of the employment service or on his own.

Let’s summarize what payments he is entitled to when an employee is laid off and within what time frame.

1. Full repayment of all debts on wages and unused vacation no later than the day of dismissal.
2. Severance pay, which is equal to the average monthly income (no later than six days from the date of dismissal).
3. Average earnings for the period of employment within two months from the date of dismissal (only if you contact the employment service and there is no suitable vacancy).

There are cases of agreement between the parties when an employee can be dismissed before the expiration of two months after his notice and with his written consent. In such a situation, the employee additional monetary compensation is paid in the amount of average monthly earnings, calculated in proportion to the days remaining before dismissal. This compensation is an additional payment and does not cancel other benefits provided under the Labor Code.

Sometimes special cases arise when an employee refuses to move to another position, but cannot occupy the current one due to:

• reinstatement to the position of an employee who previously held it (for example, leaving maternity leave or a court decision);
• refusal to move to another city where the position is being transferred;
• conscription of an employee into the army;
• changes in the employment contract and its terms;
• recognition of an employee as incapable of work.

In this situation, he is also subject to layoffs and is entitled to two weeks of average earnings.

How to calculate severance pay?

The calculation of the average monthly salary to calculate the amount of severance pay required for payment is regulated by the Labor Code of the Russian Federation, namely Article 139. In order to calculate it correctly, it is necessary to clearly define the following data:

• start and end dates of the month for which benefits are paid;
• the number of working days (hours for piecework) in a month for which compensation is due;
• calculate the average daily earnings (or average hourly earnings).

After receiving all this data, the average monthly earnings are calculated, which is the amount of severance pay. It is subsequently the required compensation paid to the employee within two months if he does not find a new job.

When calculating average monthly earnings, a period of 12 months is taken that preceded the month the employee was dismissed. For the calculation, only those amounts are taken that relate to wages (direct remuneration of the employee) and do not take into account possible compensation that occurred during the calculation period, namely:

• direct salary (rate);
• additional payments for increased qualifications of an employee;
• additional payments for the quality, quantity or complexity of work;
• bonuses and other incentive payments;
• compensatory bonuses and additional payments related directly to labor (related to the employee’s fulfillment of his labor obligations).

Compensations that are not included in the billing period include those that are not related to the work process. This sick pay and compensation for unused vacation, if it was accrued during the period taken for calculation.

The nuances of compensation during the period of employment

In order to receive the average earnings due for the second month of employment, former employee must provide evidence that he still hasn't been able to find a new job. The supporting document in this situation will be the work book, the entries in which will show whether he has already found a job or not.

This redundancy payment is compensation to the former employee for the period of employment; accordingly, as soon as he finds a new job under an employment contract, he loses his right to receive it. That is why average monthly earnings are always paid only at the end of each calendar month from the date of dismissal of the employee due to staff reduction. Moreover, if he finds a job in the middle of this period, he has the right to a compensation payment for the days he was looking for before registering for a new job.

Severance pay has nothing to do with this - it is compensation for loss of work and is paid even if the dismissed employee finds a job the very next day.

Legislative aspects

When dismissing employees due to staff reduction, there are a number of legislative subtleties and nuances that must be known and observed so that no claims can arise against the employer.

According to Article 261 of the Labor Code of the Russian Federation A woman cannot be laid off, expecting a child. Even if she works on the basis of a fixed-term employment contract, after providing a medical certificate, the employer is obliged to extend her contract. The only legal option for reduction in this case is if she held the position of another employee due to his temporary absence, and there is no possibility of transferring her to another vacancy.

They also do not have the right to fire a woman who has children under three years old, a single mother raising a child under fourteen years old, or a disabled child under eighteen years old due to layoffs.

Teachers and other education workers do not have the right to be fired due to layoffs before the end of the school year.

When reducing staff, if there is a question of dismissal between several employees, there is a moment of pre-emptive right. It is primarily possessed by employees who have higher qualifications or labor productivity. If there are no such indicators or they are equal, then the following have the advantage of remaining in the position:

• family workers who are the sole breadwinners.
• family workers who support two or more dependents.
• employees who received an occupational disease or work injury at this place of work.
• employees who improve their qualifications for their position without interruption from work.

It is also worth remembering that compensation payments for layoffs to an employee working part-time are not due, since he has a main place of work.

If an employee is laid off after working in the organization for less than six months, he are still required to pay compensation for unused vacation.

By agreement of the parties, the employer may dismiss an employee without notice two months in advance, while retaining all compensation payments, but only with the written consent of the latter. If such an agreement is not reached between the parties, the reduction procedure occurs as usual.

Going to court

If an employer, when reducing staff, violates the rights of a dismissed employee, the latter always has the right to go to court. The deadline for filing a claim is thirty calendar days from the date of dismissal (receipt of a copy of the order or work record book).

Unfortunately, facts when an employer, wanting to save money and taking advantage of the employee’s ignorance of the labor code, violates the law and forces the employee to write a statement of his own free will, occur quite often. That's why you need to know your rights and not be afraid to defend them in court. If the court finds such a dismissal illegal, the employer will be required to reissue the documents and pay all required compensation, or possibly reinstate the employee with payment for forced absence.

It happens that in order to optimize its activities, an enterprise is forced to reduce the number of employees - this is not a pleasant measure.

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To resolve possible controversial issues, the legislation clearly defines mandatory measures, and also provides for certain compensations guaranteed to a person upon dismissal during the reduction of staff.

How is this issue addressed in the law?

Staff reductions often occur at the request of the employer, therefore labor legislation provides guarantees to employees, namely:

• Article 178 considers various nuances of calculating dismissed workers;
• Article 179 reveals points of priority for retention at the enterprise;
• Article 180 defines the types of guarantees provided to those being dismissed.

The reduction in the number of employees must be carried out in accordance with current regulations.

You should start with individual notification two months before the day of dismissal of all employees on the layoff list. An order is issued with the mandatory formulation of the reasons for the reduction in numbers, the necessary measures, and a specific date for dismissal is indicated.

During these activities, the employer offers the dismissed person to perform other functions (Part 3 of Article 81 of the Labor Code of the Russian Federation).

The legislation provides a preferential right to remain in a position:

• more qualified employees;
• employees with high levels of labor productivity;
• employees with large families;
• workers with a work-related injury or occupational disease;
• disabled military personnel - defenders of the Fatherland;
• who have improved their qualifications at this enterprise.

Calculation algorithm:

• First, the sum of all payments for the previous 12 months worked is calculated.
• Amounts paid under the certificate of incapacity for work and vacation pay used must be deducted.
• Divide the result by the number of days worked and the result is 1 day’s earnings.

Severance pay is calculated by multiplying the average daily wage by working days in the paid period.

Example:

Manager Mikhail T. worked for the company for 5 years and was laid off in 2019. Salary for the past 12 months for “–” and vacation pay amounted to 264,000 rubles.

220 days were worked, the average salary would then be 1,200 rubles per day (264,000/220). In the month following the day of dismissal – 20 days (working days). This month’s salary is 24,000 rubles.

The following months are calculated in the same way.

The employment agreement or collective agreement may offer other compensatory payments. Then higher amounts are taken into account.

Taxation and calculation of compulsory insurance contributions

Tax legislation of the Russian Federation (Article 217) states that personal income taxes are not calculated from funds paid to dismissed employees.

This benefit does not apply to payments made by decision of management in excess of the standards specified in the Labor Code. The difference between the amount issued and the average earnings is subject to personal income tax.

If we assume that the aforementioned manager Mikhail T. was paid not 25,200 rubles, but 40,000 rubles according to the approved collective agreement, then personal income tax in the amount of 1,924 rubles ((40,000 - 25,200) * 13%) should be deducted from the employee.

The same principle is observed when calculating insurance premiums (Article 9 No. 212-FZ):

Using the same example and the same difference between the paid amount of benefits and the calculated average salary, we obtain the amount for payment of insurance premiums - 4,469.60 rubles. ((40000 - 25200) * 30.2%).

Compensatory payments for days of unused vacation are determined according to the example of calculating regular vacation pay (Russian Federation Government Regulation No. 922).

Important: this type of compensation is taxed and is subject to contributions to the budgets of compulsory insurance funds.

A laid-off employee is provided with another type of social support, namely sixty percent of the average salary in case of injury or illness received during the first calendar month after dismissal (Article 7 No. 255-FZ).

All of the above can be summarized and the results tabulated using the example of the same manager Mikhail T., assuming that he was laid off on February 1, 2019:

No.	Types of payments and basis	Period	Duration (in days)	Charged amount (in rubles)
1.	Remuneration for time worked (Part 1 of Article 140 of the Labor Code of the Russian Federation)	January, 2019	15 (workers)	12200
2.	Compensation for unused vacation (Article 127 of the Labor Code of the Russian Federation)	2014 — 2019	28 (calendar)	20952
3.	Amount of severance pay (Part 1 of Article 178 of the Labor Code of the Russian Federation)	from 02/3/2015 to 03/3/2015	20 (workers)	24000
4.	Average earnings for the period of new employment (Parts 1 and 2 of Article 178 of the Labor Code of the Russian Federation)	from 4.03.2015 to 4.04.2015	22 (workers)	26400

Since in the case under consideration there is no excess of average earnings, there is no need to calculate deductions and payments to the budget (with the exception of point 2 of the table).

The table can be continued from 04/05/2015 if there is an application from a dismissed employee to provide a work book for verification, excluding the fact of employment, and also calculate the 3rd month (if confirmed from the labor exchange).

In the end, we can say that the reduction procedure is completely regulated by regulatory documents.

And for a dismissed employee, current legislation provides financial support for the period until a suitable vacancy is found.

Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.