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The employee left before the layoff. Downsizing and early layoffs

Staff reduction is a complex and multi-stage process that must be carried out in accordance with the requirements and conditions of the Labor Code of the Russian Federation. Each organization independently determines the structure and staffing, so a change in staffing can be carried out up to four times a year, if required by the boss. However, employees have their own rights, including early redundancy at the request of the employee.

Early dismissal at the request of the employee is not prohibited in the Labor Code of the Russian Federation

Let's consider the following questions on removing an employee from a position when changing the staffing table:

Terms of dismissal in case of staff reduction.
Dismissal by own will.
Compiling an application is your guarantee.
Retirement with downsizing.
Terms of termination of the employment contract and payment.

Conditions for dismissal in case of staff reduction

If the decision to reduce the number of employees or staff has already been made, organizations are subject to liquidation vacant positions followed by a reduction in the number of employees.

Many employees of the organization who are to be fired may be subject to reduction, but some of them are protected by law (pregnant women, women with children under three years old, employees with underage children with disabilities, single mothers or single fathers with children under 14 years old). Reduction is allowed only if the employee does not have a pre-emptive right to remain in the position.

After the candidates for dismissal have been selected, the employer is obliged to notify everyone in writing of the upcoming reduction. This must be done two months before the official termination of the employment contract. Sometimes it is possible to carry out an early reduction at the initiative of the employee. This procedure has its own characteristics.

Voluntary dismissal

According to Article 81, paragraph 2 of the first part of the Labor Code, when reducing the number of employees, dismissal is allowed no earlier than 2 months from the date of written notification. However, sometimes there are cases when an employee wishes to terminate labor contract ahead of schedule, because I found new job and does not want to lose this opportunity.

early termination at own request with reduction possible. In this case, the employee will be dismissed as in the usual application "of his own free will."

But this affects the calculation of the following payments:

severance pay}
payment of average earnings during unemployment)
compensation.

An employer does not have the right to prevent an employee from leaving. In turn, the employee has the right to apply for a request to terminate the employment contract at any time. Nevertheless, there is a certain risk in this method of dismissal: the employee cannot count on the benefits provided to him under Article 81 of the Labor Code, Part 2 of Article 1. Thus, voluntary dismissal during reduction is fraught with a lack of severance pay.

remember that termination of the contract is not mandatory until the period provided for by the reduction in staff has expired)
the initiative to terminate the contract from a legal point of view is assigned to the boss, and the subordinate can only agree with him or not)
the employee can act as the initiator of the termination of the contract and hope to provide all the calculations provided for in article 180.

Compiling an application is your guarantee

Voluntary dismissal during reduction deprives the right to certain payments

Competently drafting a letter of resignation plays a huge role. If an early reduction at the request of the employee sounds like a dismissal, then it will be calculated in accordance with Article 77 of the Labor Code, the first part, paragraph three. Thus, the employee is deprived of all compensation and benefits provided to him when he falls under the reduction. For this reason, the subordinate must be able to correctly state the essence of the statement. This will avoid litigation and other unpleasant moments.

The text may be something like this: “On September 10, 2013, I read the notice of being laid off on November 10, 2013 against signature and about my dismissal on this occasion no later than the appointed date. In this regard, I ask you to dismiss me on September 12, 2013 before the expiration of the period specified in the notice of dismissal in connection with my reduction and compensation payments due to me." In this case, dismissal can be made only with the consent of the employer.

Therefore, the desire of an employee to quit early should be expressed in writing. As often happens, during a period of mass layoffs, the employer is interested in dismissing employees at their “own will”, since in this case they will not have to pay compensation.

For this reason, they can be used different ways psychological pressure on the employee. Very often, an employee cannot stand it and quits of his own free will, and then goes to court to clarify the wording of the application and recover due payments at early reduction, claiming that the boss forced him to write such a statement. But the duty to prove this fact lies with the employee.

During the trial, the reasons that prompted the employee to write a statement are investigated. This takes into account the circumstances and true intentions of the employee. When considering a claim, it is imperative to study the text of the application and indicate the mandatory details in it (date of writing, signature, date of receipt of the application by the head, resolution).

If the employee manages to prove in court that the letter of resignation was not “of his own free will”, that is, written under pressure, the termination of the employment contract will be declared illegal. Therefore, it is advisable for the boss to terminate the contract in such a way as to avoid litigation in the future.

Retirement with downsizing

According to Article 81 of the Labor Code of the Russian Federation, the first part of the second paragraph follows that the contract can be terminated by the employer with a reduction in staff or the number of subordinates. However, employees who have reached the pre-retirement age, whose employment contract was terminated as a result of reduction, have certain guarantees:

Citizens who have not reached retirement age and have an insurance period of 25-20 years and a mandatory period of service giving the right to early appointment of an old-age pension have the following benefits: mandatory monthly payments of benefits in connection with temporary unemployment during the year. At the same time, the period of payment of unemployment benefits should be increased, and in addition to the mandatory 12 months, another two weeks will be accrued for each year of work exceeding the insurance period.
The employment service may offer a pension for the period until the retirement age, in accordance with Article 32 of the Employment Law.
Upon reaching retirement age, a citizen has the right to be transferred to a pension.

Thus, care for early retirement in connection with the reduction - not such a problem.

Conditions for termination of the employment contract and payment

Dismissal of one's own free will with a reduction is fraught with the absence of severance pay.

After the new staffing, and employees were notified of the upcoming reduction and dismissal, two months must pass before the settlement of employees takes place. Simultaneously with the written notice of dismissal, the boss must offer a transfer or notify the impossibility of transfer due to lack of vacancies.

Further, the employer is obliged to notify the trade union committee. To do this, he sends an example of an order and receives a response within a week. The employer must also provide the employee with the opportunity to look for a new job. To do this, he can provide additional time, and release a person from work for three hours a week.

After two months, the employee is dismissed and all mandatory compensation is paid to him. Also, against signature, the work book of the employee is issued and a corresponding note is made in the registration log. The employee is considered officially dismissed, and his case is transferred to the archive of the organization.

Employees who are subject to dismissal due to staff reduction are notified of the upcoming termination of the employment contract at least 2 months in advance. Not all employees have a desire to continue working at the same place of work until the very dismissal, because it is better to spend these two months looking for a new job.

In this article, we will look at:

the pros and cons of early dismissal at the initiative of the employee with a reduction in staff;
the procedure for early dismissal at the initiative of the employee in case of staff reduction;
registration of early dismissal at the initiative of the employee in case of staff reduction.

Pros and cons of early dismissal at the initiative of the employee with a reduction in staff

The initiator of the reduction in the number of working personnel is usually the employer. After a decision is made to reduce staff, employees who are subject to reduction are notified of this two months before dismissal (in the case of an open-ended employment contract). But sometimes an employee may express a desire for early dismissal, because in these two months he will be able to start looking for a new job, and in case of a successful search, start faster labor activity in a new place.

However, in case of early dismissal at the initiative of the employee, when reducing the staff, it is necessary to follow the procedure for dismissal and correctly draw up all Required documents. Otherwise, the employee is deprived of the right to receive compensation payments provided for by labor legislation when redundancy layoffs state.

It should also be taken into account that the law gives the employee the right to early dismissal, but at the same time does not impose on employers the obligation to dismiss the employee at his request when reducing the staff. That is, in this case, the decision depends entirely on the goodwill of the employer.

The procedure for early dismissal in case of staff reduction (at the initiative of the employee)

The procedure for dismissing employees to reduce staff requires a certain procedure. First, the employer issues an order to reduce staff. This order is not grounds for dismissal, it just launches redundancy measures. The order must list the positions that fall under the reduction.

Then, at least two months before the reduction of positions, it is necessary to notify in writing each employee who falls under the reduction of the upcoming dismissal. Here, the employee has the right to decide whether to work for another two months, or to ask the employer to dismiss him ahead of schedule.

It is important to know that when staff is reduced, employees are entitled to the following payments:

salary for all actually worked days (shifts) in the month of writing the letter of resignation;
compensation for unused vacation;
severance pay in the amount of one average salary per month (not paid in case of early dismissal at the initiative of the employee);
allowance for the period of employment (up to 2 months, and when registering with an employment center within two weeks - up to 3 months) in the amount of the employee's average earnings for each month;
in case of early dismissal at the initiative of the employee due to a reduction in staff, an additional allowance calculated in proportion to the remaining working days before the reduction.

In order to receive all these compensations in case of early dismissal at the initiative of the employee in case of staff reduction, you need to correctly draw up all the documents.

Registration of early dismissal at the initiative of the employee in case of staff reduction

First, the employee must write a letter of resignation. The application must indicate:

that the employee is already familiar with the start of the redundancy procedure and the date of receipt of the notification;
that the employee was offered other vacancies at the employer that correspond to his qualifications and work experience;
that dismissal is a personal initiative of the employee;
that the employee wants to quit ahead of schedule, before the expiration of the required two months;
that the employee claims all payments that are due to him by law;
the date on which the employee leaves.

There is a “slippery moment” here: the application must clearly indicate that early dismissal occurs at the initiative of the employee, but in connection with a reduction in staff, and also that the employee claims all the due payments. If the application contains only the wording “ voluntarily dismissal”, then the employee will not be able to claim mandatory compensation.

With the consent to early dismissal, the employer signs the employee's application. After signing, he issues an order to dismiss the employee ahead of schedule on his initiative. The order is registered in the journal of orders and provided to the employee against signature for review.

The employer on the day of dismissal of the employee must make a full settlement with him.

If the dismissal of an employee does not occur on his initiative, then it is always unpleasant and insulting for the employee. Most people try to avoid this situation. However, there are times when dismissal is unavoidable. This happens when the staff of the enterprise is reduced. If you have received a redundancy notice, early termination may be a good alternative.

Quit of your own free will?

According to the Labor Code, when an employee is dismissed due to a reduction in the staff of the enterprise, the employee is given a notice of the upcoming reduction in position and dismissal of the employee at least 2 months before the scheduled date of dismissal. But quite often a situation arises when the employee himself asks for an earlier termination of the employment contract. This may be due to a number of reasons. One of them is that a person has found a new job. Fearing that the vacancy will be occupied by another applicant, he seeks to quickly begin to fulfill his duties.

On what basis in this option should the employee leave? After all, he expressed his own desire, at the same time, this desire is caused by a reduction in staff. It depends on the grounds for dismissal whether the payment of severance pay and the average salary for the period of employment, additional compensation, calculated in proportion to the time not worked by the employee before the end of the reduction notice period, will be made.

The Constitution of the Russian Federation and the Labor Code guarantee all citizens the right to work. And where exactly, in which organization, company, firm, the employee will exercise his right - depends on him. Therefore, the employer cannot prevent the employee from resigning before the date of dismissal for reduction. An employee may submit an application at any time.

In this case, the employee must clearly understand that upon dismissal of his own free will, he does not lose the right to those guarantees, compensations that would have been provided to him upon dismissal due to staff reduction. At the same time, this early dismissal was by no means caused by the “own desire” of the employee, but is a forced, “hidden” dismissal due to staff reduction.

Early termination of the contract due to staff reduction

The Labor Code of the Russian Federation makes it possible to dismiss the reduced employee before the deadline, which determines the notice of early dismissal. According to part 5 of Art. 180, an employer may terminate an employment contract with an employee before the expiration of the term written consent.

Thus, according to this article, the right to early termination of the contract is granted to the employer, and not to the employee, although the employer can exercise it only with the consent of the employee. That is, initially it is the employer who decides on the advisability of working out the entire period indicated in the notice.

But this rule cannot prohibit the employee from initiating the process of terminating the employment contract ahead of schedule. Moreover, the Labor Code does not force the employer to satisfy this request of the employee without fail. Therefore, for the early termination of the contract on staff reduction, both parties should be interested in this. And the employer in the first place, since it depends on him to a greater extent whether this reduction will occur or not, and the employee retains the right to agree or refuse this proposal.

Application for early termination of an employment contract for staff reduction

An employee can also take the initiative to terminate the contract ahead of schedule in compliance with all possible legal guarantees, which are provided for in Article 180 of the Labor Code. Whether to agree to this offer is the prerogative of the employer. In this case, to accept right decision on the reduction of an employee, a large role is given to an application for early termination of the contract.

To dismiss an employee not on the basis of his own desire, but on the basis of a reduction in staff, the application must be correctly written. Its text should exclude double interpretation. The request must be detailed and clear.

It must be indicated that the employee is familiar with the beginning of the procedure for his dismissal in connection with the upcoming reduction in staff, indicating the date determined for this. It is necessary to inform whether vacancies were offered to him, and if so, which ones. Be sure to indicate that he wants to quit before the expiration of the appointed term of dismissal due to staff reduction, and that he claims the compensation payments due. In this case, dismissal is impossible without the consent of the employer.

Payments upon dismissal on reduction before the expiration of the period of reduction

It is clear that it is economically more profitable for the employer to dismiss employees during the period of reduction at their own request. In this case, he should not make compensation payments. Some dishonest employers even use threats, methods of psychological pressure to force employees to quit on their own.

If an employee leaves early, then the following payments are provided for him upon dismissal on a reduction before the expiration of the reduction period, which are paid by the employer:

salary for the time that he actually worked in the month of dismissal;
compensation for all holidays that the employee did not use;
severance pay amounting to the average monthly salary (only if early dismissal at the initiative of the employer);
additional compensation equal to the average earnings for the time left until the appointed date of dismissal due to staff reduction (if it is prescribed in the collective agreement);
for the period of employment - the average monthly earnings, however, this period should not exceed two (in individual cases, by decision of the employment center - three) months from the date of dismissal.

Going to court

It is not uncommon for an employee, succumbing to pressure from the employer, during the period of staff reduction, writes a statement with a request to dismiss him “of his own free will”. Then he can apply to the court to change the wording of the motives for dismissal and collect the payments due to him, claiming that the administration forced him to write a statement. In this case, it is the employee who must prove that coercion by the employer took place.

Considering the claim, the court examines:

If the employee proves in court that this statement was written by him under pressure from the employer and does not correspond to his wishes, then the termination of the contract is declared illegal. In such a case, the employer is obliged to change the wording of the grounds for dismissal, as well as to make all the required payments, including compensation for moral damage and expenses caused by participation in court hearings. It is possible that the court decides to reinstate the employee in his position and pay for forced absenteeism.

, rupture of working relations can occur ahead of schedule with a reduction in the number of staff. The regulatory provisions of this article allow the employer:

According to Article 180 Labor Code, each employee subject to redundancy must receive notice of the redundancy in writing. After that, he begins to look for a new job, while continuing to fulfill his duties at the workplace.

affect the gap labor agreement and downsizing can be the following reasons:

a new place of work and a desire to immediately begin to fulfill their duties;
retirement.

What benefits can an employee who leaves the state prematurely expect?

The employee has the right to demand early termination of the employment contract referring to Art. 180 TC.

Thus, he retains the right to additional monetary compensation. Its size is equal to the amount of monthly income, and the right to receive a second monthly wages if the employee did not find a new job during the second month after the dismissal.

In addition, the employee retains the right to receive a third severance pay if, 2 weeks after dismissal, he is registered at the labor exchange.

In addition to severance pay, a retired employee for all unused vacation days should receive monetary compensation. The employee can receive all payments on the next day, when the organization provides for the payment of salaries.

Now you can summarize and identify all the cash payments that a person who quits prematurely with a reduction in staff can receive:

salary for the days worked in the month when the employment agreement was terminated;
monetary compensation for untaken vacation days;
remuneration that corresponds to the size of the employee's salary on average;
exit allowance, the amount of which is identical to the average earnings of an individual;
average earnings for 2 months, the countdown starts from the moment you leave work.

Procedure

Applying

An employee who wishes to cancel an employment contract on his own initiative must know all the intricacies of the correct writing of the application. It is on this that the guarantee of the success of the subsequent dismissal process and the receipt of benefits depends.

The wording of the statement is clear, no double meaning. You need to write that the dismissal occurs due to staff reduction, and not at personal discretion. The fact is that when calculating dismissal payments, you have to refer to different articles.

In the application, the employee is obliged to state that he knows about his reduction, write the date of this deadline, list all the offered vacancies to him, if this was the case. When writing a statement, you need to emphasize that the employee wants to terminate the employment agreement before the time for reduction comes.

It is important to indicate that he expects to receive payments due to him by law in the current situation.

The application must contain the following information:

name of the employer;
Full name and position of the worker who was laid off;
the text of the application (meaning - permission to terminate the employment agreement ahead of schedule);
basis - part 3 of Art. 180 of the Labor Code of the Russian Federation;
date of signing the application;
employee's signature.

Write a letter of resignation for redundancy ahead of schedule is possible only after the order for the enterprise has been officially published, and the employee has signed a notice indicating the deadlines.

Making an order before the expiration of the notice period

When the head of the organization is not against the dismissal of an employee, then before the end of the warning period, he must issue an appropriate order. Documentation takes place in the first person and contains the following information:

The dismissal order when reducing the staff without the need to work out 2 months, the boss must provide the resigning employee under personal signature, and then it is registered in the journal of orders.

Important! To prevent various misunderstandings, you need to make sure. To do this, the employer and the employee leaving the organization will have to draw up an agreement in two copies.

The application must contain all payments claimed former employee and when he will receive them.

After that, the employee can safely go to the accounting department and collect the necessary remuneration, without fear that he will be fired at his own discretion.

What is included in the work book?

After the dismissal of an employee in his work book an entry should appear. under the date indicated in the order of dismissal.

In the work book, in the line “Grounds for termination of the employment contract (dismissal)” there will be the following entry: “In connection with the reduction in the staff of the organization’s employees, clause 2, part 1, article 81 of the Labor Code of the Russian Federation”.

What to do if the employer does not release?

Does an employer have the right not to agree to release an employee ahead of schedule? No, he has no such right. The employee simply does not go to work on the 15th day, and in court he has the right to demand payment of the average wage for the time of forced absenteeism. At the same time, he must have confirmation in his hands that the letter of resignation was accepted by the boss.

Besides, The rights of the worker on the part of the boss may be violated if:

The firm did not receive an agreement to implement early termination.
All payments stipulated by law were not implemented in full. This should include: cash payments for not taken vacation.
The procedure was implemented with inconsistencies (for example, the labor exchange was not notified properly).
The dismissal of the employee was carried out later than 2 months before the immediate dismissal.
The boss morally puts pressure on the employee so that he writes a letter of resignation "of his own free will" so as not to pay him the due compensation.

To prove their rights, the employee must contact an experienced lawyer who will tell you how to draw up a statement of claim for litigation in order to protect the principal.

The filing of a statement of claim is carried out in a court of general jurisdiction in the number of copies, according to the number of participants in the process. The claim must contain the following elements:

You can appeal a dismissal that is not carried out according to the law within 30 days. During the trial, the judge makes a decision, the effective part of which will display:

oblige the company to make changes to the record that is noted in the labor;
collect payments and compensation from the organization;
moral damage caused by illegal actions.

Getting laid off from work is a rather unpleasant moment in life. But you can benefit from this if the employee quits ahead of schedule on his own initiative, that is, at his own request. Then he can at least qualify for cash payments. But it does not always go smoothly, sometimes an innocent application for early dismissal leads to a trial, which takes a lot of time and effort.

Labor legislation allows the dismissal of the reduced employee earlier than the two-month period established for warning about such dismissal. In case of such early dismissal, the employee must make the same payments that would be due to him upon dismissal due to staff reduction on time, as well as pay additional compensation.

Early dismissal due to reduction

This possibility is provided for by Part 3 of Art. 180 of the Labor Code of the Russian Federation.

The conditions for early termination are:

the written consent of the employee to the employer's proposal to dismiss before the deadline specified in the notice of dismissal issued to the employee for reduction;
payment to the employee of additional compensation (in fact, payment in the amount of the average earnings of the time remaining until the date of dismissal - usually about two months).

Since the grounds for dismissal indicated in the order and work book will be clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, the employee is entitled to all guarantees and benefits, statutory for laid-off employees.

Arranging for early layoffs

From part 3 of Art. 180 of the Labor Code of the Russian Federation it follows that the proposal for such early dismissal should come from the employer. However, a ban on the reverse option has not been established, which means that an employee can also come up with a similar initiative. The employer has the right to agree or refuse.

Early redundant employees also receive additional compensation in the amount of their average earnings, calculated in proportion to the time until the end of the notice of dismissal.

A worker who is laid off ahead of schedule can claim a maximum of five of his average earnings (“northerner” - up to eight).

It is necessary to pay all the amounts due to the employee (except for the saved earnings for the 2nd and 3rd months of unemployment) on the day of dismissal - Art. 140 of the Labor Code of the Russian Federation.

It turns out that on the day of dismissal in case of early reduction, he must be paid:

salary for the time of work preceding the dismissal (including compensatory and incentive payments);
compensation for previously unused vacations (Article 127 of the Labor Code of the Russian Federation);
severance pay in the amount of average monthly earnings (Article 178 of the Labor Code of the Russian Federation) or in an increased amount, if it is established in the organization;
additional compensation.

How to correctly calculate additional compensation for early redundancy?

The average monthly salary of an employee, used, among other things, to calculate additional compensation, includes all payments provided for by the current remuneration system in the organization (Article 139 of the Labor Code of the Russian Federation and the Regulation on the peculiarities of the procedure for calculating the average wage, approved by Government Decree dated 24.12 .2007 N 922 (hereinafter - Regulation No. 922)).

Consider an example of calculating such compensation.

The employee was notified on 08/31/2017 of the upcoming dismissal for reduction with the expiration of a 2-month period on 10/31/2017. With his written consent, the employment contract was terminated ahead of schedule on September 15, 2017. The salary of this worker is 50 thousand rubles. per month. How to calculate the amount of additional compensation for early dismissal if the billing period is fully worked out?

Additional compensation for early dismissal is paid to a reduced employee for the period from 09/16/2017 to 10/31/2017. In this period for production calendar 2017 32 working days.

Clause 9 of Regulation N 922 prescribes the use of average daily earnings in the cases provided for by the Labor Code of the Russian Federation when determining average earnings. Average earnings is found by multiplying the average daily earnings by the number of days in the payable period.

In our situation, the average daily earnings are found by dividing the amount of wages actually accrued for the days worked in the billing period (including bonuses and remuneration in accordance with clause 15 of Regulation N 922) by the number of days actually worked in this period.

The billing period is 248 business days.

Average daily earnings - 2419.35 rubles. ((50,000 rubles x 12 months) / 248 working days).

The amount of additional compensation for early dismissal is 77,419.35 rubles. (2419.35 rubles x 32 working days).