In every organization, to one degree or another, there is such a phenomenon as staff turnover. Some people leave because they moved, others because they could not find a common language with management, and still others because they found a better job. In addition, the employee may be dismissed by the employer himself for poor-quality performance of activities. But one of the most common causes layoffs is .

In fact, dismissal due to a layoff has an important feature - a new employee is not hired to replace the dismissed employee, and the position itself should disappear. So, if for some reason system administrators are fired in a company (and there were only 3 of them), then all three must be fired, and this position should no longer be in the organizational structure.

What is required for an employee according to the Labor Code of the Russian Federation

Each employee who has fallen under the reduction must understand that he is entitled to certain payments. According to the Labor Code of the Russian Federation, 3 types of payments must be made:

• (as an option, for all unused vacations, if a person voluntarily refused them and had not received money in return before that);
• Salary for the time that the employee actually worked in the month of dismissal;

The last point is special and is not provided for all types of dismissal. The amount of severance pay is equal to the average monthly earnings for the billing period. Interestingly, for those workers who were laid off, it is possible to receive average earnings for the period of searching for a new job and registration. But, the term of receipt is legally limited to 2 months, the countdown of which starts from the moment of dismissal.

It's important to know that the employee must be warned about the reduction 2 months in advance. However, he may be fired earlier. But in this case, he is entitled to additional compensation, which does not cancel the payment of the remaining amounts, calculated as average earnings, which is calculated in proportion to the time remaining until dismissal.

You can learn more about all the due payments from the following video:

Calculation period definition

In order to determine the amount of compensation, the employer will have to carry out the calculation. In the standard case, it is carried out as follows: the last 12 (full) calendar months are taken and for this period.

At the same time, it is permissible to change the term of the billing period in the following situations:

• The employee has not worked for the organization for a year. In this case, the billing period will be considered for whole calendar months during which the employee was on the staff.
• If the company decided to consider another billing period that does not coincide with 12 months. In this case, the general rule: it is necessary to calculate the average wage for Last year, as well as for the billing period chosen by the organization and compare them. As a result, the amount received in the second calculation cannot be less than that calculated according to the generally accepted procedure (for 12 months).
• There is a reorganization, and the employee is reduced with a subsequent transition to a new organization. Here, 2 situations are possible - a transfer with the execution of an additional agreement or dismissal and subsequent hiring. In the first case, when calculating average earnings, payments for the last year are taken into account (including those that were accrued before the changes were introduced), and in the second case, only those payments that were accrued in the new company are taken into account.
• The man took a job and was fired in the same month. Generally speaking, this situation is illegal. Accordingly, it is necessary to go to court: according to its decision, the company will have to pay for the time of forced absenteeism, and the billing period will be equal to the number of days actually worked.

Days that are excluded from the billing period

Some days in the calculations should be excluded from the calculation period. Among them, according to the law, the following types can be distinguished:

• Days of receiving sick leave;
• Days of receipt of benefits for pregnancy and childbirth;
• Days of receiving average earnings (this applies to business trips or paid vacation);
• Days spent on vacation without pay;
• Days of non-fulfillment of work due to a strike (in case the employee himself did not take part in it);
• Additional days off (in case of need to care for disabled children), which are payable;
• Days of downtime due to the fault of the organization;
• Days of downtime due to reasons beyond the control of the company and the employee.

Calculation examples in various situations

Let's assume that the logistics analyst Ivanova I.I. has been working in the company since March 10, 2012 and was laid off. The notification came on March 31, 2014, and the dismissal itself will occur on July 10, 2014. Salary in 2013 and 2014 was 69 thousand rubles per month. There was no increase, since indexation in the company is carried out every 2 years. Her monthly bonus is 10% according to the accepted position. In the billing period, Ivanova was not on vacation.

If the collective agreement of the company specifies a fixed amount of severance pay (for example, it is 75 thousand rubles), then it will receive a benefit equal to this amount, since if there are clauses of this kind in the agreement, the amount of average earnings cannot be decisive.

• 69,000 / 23 * 8 = 24,000 rubles

When calculating compensation for unused vacation First you need to calculate the number of days. To do this, divide the duration annual leave by 12 and multiply by the number of full months worked (since Ivanova worked less than 11 months in the current year). It is important to understand that the period is not considered according to the calendar year, but from the date from which the employee started working - this is March 10. Accordingly, by July 10, the number of months worked will be 4. We get:

• 28 / 12 * 4 = 9,33

After that, the average earnings per day are considered and compensation is directly calculated. To calculate the average daily earnings, you need to determine the amount of earnings for the billing period. This does not include sick leave and vacation pay.

If the employee worked for a month in full, then for calculations it is necessary to take the average value calendar days, which is currently 29.3. Thus, for our situation, we get that the average daily earnings will be:

• (69,000 + 69,000 * 0.1) * 12 / 29.3 * 12 = 2,590.44 rubles

Accordingly, the amount of vacation pay will be:

• 9.33 * 2590, 44 = 24,168.84 rubles

Deadlines within which the employer must pay the employee

The calculation period is the period of time for which the employee must be calculated upon his dismissal. In addition to all cash payments, a refund must be made.

In the event that an employee is on sick leave (which is unlikely in the event of dismissal due to staff reduction), payroll can be carried out in a non-cash form - by transferring to bank card. It is important to understand that in this situation, the employer will have to pay the same sick leave.

The laws of the Russian Federation allow the situation of calculating payments and compensations after the appeal of the dismissed person. This must be done no later than the day following the receipt of such application.

Interestingly, if there is disagreement about the amount of compensation (which often appears), the employer is obliged to pay the part for which there are no claims from either side. The rest of the amount is paid either after a court decision (in the worst case), or after reaching a mutual agreement.

There are cases when a former employee, upon dismissal, has a certain debt to management (for example, it may be due to the fact that the employee intentionally caused damage to office equipment). In this case, the employer has the right to withhold funds that are due to him by law, subject to restrictions: the amount of deductions cannot exceed one fifth of the salary former employee.

Early termination settlements

According to article 180 of the Labor Code of the Russian Federation early dismissal can only be carried out with the written permission of the employee. At the same time, it must be paid additional compensation. It is calculated in the amount of the employee's average earnings, calculated in proportion to the time left until the expiration of the termination notice.

In addition, if employees are orphans or children left without parental care (of course, this applies only to adolescents), and they are laid off in this way, the employer must ensure professional education at the expense own funds. Finally, there must be job guarantee either to this organization or to another organization. This fact is regulated by Federal Law No. 159.

It is important to understand that if, upon agreeing to an early dismissal, an employee writes a statement with the wording “dismiss by own will”, then he is not entitled to additional payments.

If this action was committed under pressure from the employer, you can apply to the courts.

Thus, with such a forced measure as downsizing, employees are supposed to whole line payments, the calculation of which is based on average earnings. Knowing the laws will allow the person not to be deceived, and the employer to maintain his good image in terms of personnel management.

When you receive a redundancy notice, you need to sit down and think carefully. First, estimate how much time you have to find a new job. Perhaps you are going to be fired only after a couple of months, and before that time you will already have time to find a new job.

Second, don't get discouraged. Remember that the organization, if, of course, you are employed in accordance with the law, is obliged to pay you a number of compensations. You should have enough of them until you find new job.

What payments are due to the employee

After you read the layoff order and sign all the papers that you are notified and agree with, you can start looking for another job.

The day that is indicated in the documents as the day of dismissal will be your last working day at this place of work. If your reduction is an initiative of the employer, he must pay you:
- ;
- monetary compensation for unused vacation;
- other financial debts (wages, bonuses, etc.)

Cash compensation must be issued to the dismissed employee no later than on the day of dismissal. Wages for the last working month are issued the day before the official reduction.

The employee will receive severance pay for two months, provided that during this time he has not yet officially got a job.

If during the period in which you received severance pay have already found a job, but are not officially registered in it, i.e. you receive your salary in an envelope, you do not lose the right to severance pay.

In the first month, the amount of severance pay is equal to the average monthly earnings of the dismissed employee. The payment for the second month is calculated a little differently - it is equal to the number of working days in this month, multiplied by the average wage for one day.

To calculate the severance pay, you need to: Know paragraph 178 of the Labor Code of the Russian Federation, according to which the employee is dismissed, since this is the amount of the payment. For example, if the dismissal occurred due to a reduction in staff at the enterprise, then the employer is obliged to pay severance pay, the amount of which is equal to the average earnings of the employee. And if the dismissal of an employee is connected with his conscription into the ranks of the Armed Forces, then the severance pay must be paid in accordance with the size of the two-week average earnings.

Thus, in order to calculate the severance pay, it is necessary to multiply the average daily earnings by the number of working days in the month following the day the employee was fired. The average daily earnings are calculated by dividing the amount of wages that were actually accrued for the days worked in the billing period by the number of days actually worked in this period. It is important that when calculating the average wage, sick leave and vacation pay are not included.

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• how to calculate severance pay

The amount of severance pay upon dismissal depends on the reason for which the employee was dismissed (liquidation of the organization, reduction, etc.). Its calculation is carried out on the basis of the average monthly earnings of the employee. The payment of severance pay is regulated by the provisions of the Labor Code Russian Federation.

Instruction

If an employee leaves due to the liquidation of the organization or a planned reduction, then his severance pay should include 3 average monthly earnings. However, he must immediately receive 1 average monthly salary, and for another 2 months he retains the average monthly salary. In addition, compensation for unused vacation is due.

An allowance in the amount of an average two-week earnings is due to an employee in: - if he refused the transfer to, which he needs in accordance with;
- if he was called up for military service;
- if an employee who performed this work earlier was reinstated;
- if the employee refused to move to another locality with the employer;
- if changed conditions employment contract the employee did not accept;
- if he was declared incapable of work on medical indications.

In the event that an employee leaves of his own free will, he is not entitled to any severance pay. He only needs to pay compensation for unused vacation. If an employee has worked in the organization for 11 months or more, then compensation will need to be paid to him for the entire prescribed unused vacation (28 days). If less, then proceed from the calculation that for each month worked by him there are 2.33 days of vacation. Sum up the vacation days he is entitled to and subtract from them the days he has already used.

To pay severance pay, it is important to be able to determine the average earnings of an employee. According to Art. 139 of the Labor Code of the Russian Federation, the calculation of the average salary of an employee is based on the actually accrued salary and the time he actually worked for 12 months. Example:
N. worked for the organization for 12 months. His salary was 30,000 rubles for the first 3 months, and 40,000 rubles for the next. To find out how much he earned in 12 months, multiply 30,000 by 3 and 40,000 by 9 and add up. Divide the amount received (450,000 rubles) by 12 months. In this case, it will turn out 37,500 rubles.

To calculate compensation for unused vacation, you will need to find out the average daily earnings of an employee. To do this, divide the average monthly earnings by 29.6 (the average number of days in a month). Multiply the resulting amount by the number of vacation days that the employee did not use.

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• how to calculate dismissal
• Calculation of severance pay in case of reduction of an employee

Tip 4: How to pay severance pay when reducing

When the staff is reduced, the dismissed employees are paid severance pay. This value is calculated depending on the size of the average earnings. Compensation is issued along with due remuneration for hours worked. The allowance is accrued within two months from the date of termination of the contract.

You will need

• - settlement sheets for the period of calculation;
• - production calendar;
• - calculator;
• - Labor Code of the Russian Federation;
• - a note-calculation form.

Instruction

When layoffs are foreseen in your firm, notify the employees who are subject to exclusion from the company's workforce. Do this in writing two months before the cut. To do this, draw up notices in duplicate for each specialist. Such actions are prescribed in the Labor Code of the Russian Federation and are subject to execution by employers. In case of violation of the law, the employee has the right to apply to the court, which can reinstate the employee in his position.

Before dismissal, calculate the amount of remuneration that the employee is entitled to for the time actually worked, the work done. To do this, multiply the number of days worked by the amount of salary, the result includes allowances, bonuses and other due payments.

Calculate severance pay. To do this, find the amount of the average daily earnings. In the calculation period, take the calendar year. When a specialist performs a labor function for less than the specified period, take the period from the moment the employee enters work as the calculation period. Sick days and holidays are excluded from the calculation.

Now calculate the amount of rewards for the calculation period. Include salary, bonuses, allowances, that is, all payments that are permanent in nature are due for the performance of duties. Do not take into account the amounts of money that are paid in the form of material compensation, that is, those rewards that are of a one-time nature. Exclude social benefits, sick leave, vacation pay from the calculation.

Divide the amount of remuneration received by the number of calendar days in the billing period. The result is the average daily wage. Severance pay is paid within two months from the date of termination labor relations. Therefore, multiply the average earnings by the number of working days in the next two months. Pay out the received amount along with salary, having previously entered it in a note-calculation.

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• Calculation of severance pay in case of reduction of an employee in 2019
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The employer has the right to fire the employee own initiative. This happens if this enterprise completely liquidated or there is a decrease in its production capacity. Then it turns out, the so-called reduction in staff. This procedure must be carried out strictly according to the law and adhere to the Labor Code, namely: Art. 81, 178, 179, 180.

What payments are due upon reduction?

When reducing the staff of workers, the law provides for the following payments: this is the so-called severance pay, which is calculated in the amount of the average monthly wage. It, in turn, can be increased if such a clause is specified in the collective agreement.

Also, for the period of employment for a period of not more than 2 months, the employee retains the right to maintain the average monthly earnings. In some cases, the average monthly wage can be paid to the employee and within 3 months. This happens if such a decision is made by the local employment service. To receive these payments, the employee must apply to the employment service within two weeks, and must not be employed in any other place of work.

After it became known at the enterprise that the reduction would soon begin, the employer is obliged to notify its employees at least two months in advance about this event and take a receipt from the employees that they have been notified of this. Workers may not wait for the cutoff date and resign of their own free will in advance. In this case, early dismissal is completed in writing, and the employee is entitled to the payment of the average monthly earnings for the period that remains before the date of reduction.

It is always worth remembering that staff reductions due to the termination of an employment contract are never subject to income tax. This provision also applies to those citizens who left the enterprise in advance, without waiting for the date of reduction. All other payments due to employees are subject to personal income tax on a general basis.

Also, the amount of paid severance pay includes the wages of employees for the hours actually worked and cash for unused vacation.

Additional rights of an employee dismissed by reduction

A completely dismissed employee may, within 30 calendar days from the date of full settlement, again come to this enterprise and demand from former employer sick leave pay. By law, the former employer is obliged to satisfy the request of the former employee as soon as possible.

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The Labor Code of the Russian Federation provides for the payment of compensation to each employee of the company in the event of a staff reduction. It is paid in the form of average monthly earnings for several days preceding the dismissal.

Instruction

Calculate the amount of the redundancy benefit by calculating the average monthly earnings. To do this, you must be guided by Regulation N 922, approved by the Decree of the Government of the Russian Federation of December 24, 2007. First, calculate the average daily earnings of an employee.

Determine the amount of wages that were actually accrued for the days worked in the billing period, including remuneration and bonuses. Divide given value on the number of days actually worked in this period (clause 9 of Regulation No. 922). Thus, the last 12 calendar months are taken as the billing period, and the days worked are considered to be the periods from the first to the thirty-first day of each month, during which the employee retained the average salary.

Remember that in the regions of the Far North and the corresponding localities, workers laid off due to staff reduction may be paid the average earnings for the fourth, fifth and sixth months. The condition for this is the unemployment of a person and his timely appeal to the employment service authorities.

The economic crisis is the reason that many companies are forced to reorganize and reduce the number of employees working at the enterprise under labor contracts. Reduction of staff is a rather costly procedure, so some employers try to persuade employees to write letters of resignation of their own free will, but in this case, employees lose their right to compensation.

How redundancy is done

The desire of the employer to get rid of employees who have become unnecessary to him is understandable, but they should not forget about their rights. So, the employer must justify that the reorganization and other organizational and staffing activities will actually be carried out at the enterprise. By special order of the head, a new staffing table should be introduced, according to which it would be clear that the number of jobs has really decreased. Only after the issuance of such an order, the management can begin the procedure for laying off workers.

If the employee agrees to quit before two months, upon dismissal, he must be paid additional compensation in the amount of average earnings, calculated in proportion to the period remaining until dismissal.

It is carried out in agreement with the trade union organization or other representative body of workers. If mass layoffs are coming, you should be warned about this 3 months in advance, in other cases, employees should receive 2 months in advance written notices about the upcoming reduction and sign for their receipt. Keep in mind that you have the right to borrow existing ones in a new staffing vacancies if your qualifications allow it. In the event that you decide to look for a new job, the employer is obliged to pay you the compensation due by law when laying off staff.

What compensation is due upon reduction

The procedure for providing compensation payments in case of staff reduction is stipulated in Article 178 Labor Code Russian Federation. Upon dismissal, you must receive a full payment, taking into account compensation for unused vacations and overtime. In addition, you are required to pay at least two wages - one is a severance pay, the second is payment for your time used to look for a new job. In the event that the employment service cannot place you within the first month after dismissal, you can count on receiving another salary from your former employer. To do this, you will need to present a relevant certificate from the employment service.

The minimum severance pay cannot be less than the average monthly salary of the employee.

Ask about the conditions collective agreement operating in your enterprise. It may include additional compensation payments workers laid off due to redundancy.

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

What the law says

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

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

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

Making changes to the staffing table

It is possible to make a reduction in employees only when the position is already absent from the staff list. Thus, you can make changes to the already existing schedule, or develop another one, taking into account all the changes.

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

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

Categories of persons who cannot be reduced

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

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

The following employees enjoy the advantage of staying at work:

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

So, it is unacceptable to dismiss by reduction:

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

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

Reasons for layoffs

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

Typically, serious circumstances include:

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

Conditions for dismissal

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

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

Order and procedure of reduction

Dismissal by reduction is carried out in the following order:

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

Worker's rights in case of downsizing

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

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

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

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

How are redundancy payments made?

Table 1. Payment procedure

What to do if payments are not made in full

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

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

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

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

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

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

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

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

table 2.Comparative analysis of types of dismissal

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

Employer Mistakes

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

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

Conclusion

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

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

Currently, in many institutions under the jurisdiction of the Ministry of Culture, measures are being taken to reduce the staff and (or) the number of staff. We will tell you in the article what guarantees and compensations are due to employees during such events and how to properly carry out the final settlement procedure with employees.

Dismissal due to a reduction in staff and (or) the number of staff refers to dismissal at the initiative of the employer (clause 2, part 1, article 81 of the Labor Code of the Russian Federation).

The procedure for reducing the staff (number) involves the implementation of certain measures by the Labor Code of the Russian Federation and other legal documents, as well as the provision of a number of guarantees and compensations to employees (see table).

N p / p	Guarantees and compensation in case of reduction	Legislation
Guarantees
1	Employees must be notified of the upcoming dismissal due to a reduction in staff (number) (in person and under signature) at least two months before the dismissal. Employees who have concluded an employment contract for a period of up to two months must be notified of the reduction at least three calendar days before dismissal, and employees engaged in seasonal work - at least seven calendar days before	Articles 180, 292, 296 of the Labor Code of the Russian Federation
2	FROM written consent of the employee, early termination of the employment contract is possible (before the expiration of the two-month notice period)	Article 180 of the Labor Code of the Russian Federation
3	The employer is obliged to offer the employee dismissed due to the reduction in staff (number) another available job (vacant position) in the same institution, corresponding to his qualifications, or a vacant lower position or lower paid job), which the employee can perform taking into account his state of health. Dismissal is allowed only if the transfer of the employee with his consent to another job is not possible	Articles 81, 180 of the Labor Code of the Russian Federation
4	Employees with higher labor productivity and qualifications have a preferential right to stay at work. If labor productivity and qualifications of employees are the same, then preference is given to: - family - in the presence of two or more dependents; - persons in whose family there are no other workers with independent earnings; - employees who received during the period of work this employer work injury or Occupational Illness; - disabled people of the Great Patriotic War and invalids of military operations for the defense of the Fatherland; - employees who improve their skills in the direction of the employer on the job. The collective agreement may also provide for other categories of employees enjoying the priority right to remain at work.	Article 179 of the Labor Code of the Russian Federation
5	It is not allowed to terminate an employment contract in connection with a reduction in staff (number) (except in cases of liquidation of an institution) with the following categories of persons: - pregnant women; - women with children under the age of three; - single mothers raising a disabled child under the age of 18 or a young child - a child under the age of 14, other persons raising these children without a mother; - parents (other legal representatives of the child) who are the sole breadwinner of a disabled child under the age of 18 or the sole breadwinner of a child under the age of three in a family raising three or more young children, if the other parent (other legal representative of the child) is not in labor relations; - employees under the age of 18 (such persons can be fired only with the consent of the relevant state labor inspectorate and the commission on minors and the protection of their rights); — employees who are on sick leave or on vacation (including parental leave)	Articles 81, 261, 269 of the Labor Code of the Russian Federation
6	The employer is obliged to inform (in writing) about the forthcoming reduction in the number of staff (in writing) to the employment service authorities and the elected body of the primary trade union organization no later than two months before the start of the reduction measures, and if the decision to reduce may lead to mass dismissal of employees - no later than three months before the start of the relevant events. The criteria for mass layoffs are determined in industry and (or) territorial agreements	Articles 82, 180 of the Labor Code of the Russian Federation, paragraph 2 of Art. 25 of the Law of the Russian Federation of 19.04.1991 N 1032-1
Compensation
7	When terminating an employment contract due to a reduction in staff (number), an employee (including a part-time worker), in addition to wages for the time actually worked in the month of dismissal, is paid: - monetary compensation for all unused vacations, calculated on the basis of average earnings, taking into account the number of days of unused vacation; - severance pay in the amount of average monthly earnings<*>. Payment of these amounts is made on the day of dismissal of the employee. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for calculation	Articles 127, 140, 178 of the Labor Code of the Russian Federation
8	For the period of employment, the dismissed employee (with the exception of a part-time job) retains the average monthly salary (including severance pay), but not more than two months<**>from the date of dismissal, and for employees of institutions located in the regions of the Far North and equivalent areas - no more than three months<**>from the date of dismissal. The basis for this payment are the presented former employee certificate from the employment service and work book	Articles 178, 318 of the Labor Code of the Russian Federation
9	In case of early termination of the employment contract (before the expiration of the two-month notice period) due to a reduction in staff (number), the employer is obliged to pay the employee additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the notice period for dismissal	Article 180 of the Labor Code of the Russian Federation

Average earnings for calculating compensation payments

Compensation payments upon dismissal due to staff reduction (number) of personnel are calculated based on the average salary, the procedure for calculating which is regulated by Art. 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 Decree of the Government of the Russian Federation of December 24, 2007 N 922 (hereinafter - Regulation N 922).

In any mode of work, the calculation of the average salary of an employee is made on the basis of the salary actually accrued to him and the time he actually worked for the 12 calendar months preceding the period during which the employee retains the average salary. In this case, the calendar month is the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive).

When calculating average earnings, take into account all types of payments provided for by the remuneration system applied by the relevant employer, regardless of the sources of these payments, in particular (clause 2 of Regulation N 922):

1) wages accrued to the employee:

- on tariff rates, salaries (official salaries) for hours worked;

- for the work performed at piece rates;

- for the work performed as a percentage of the proceeds from the sale of products (performance of work, provision of services), or commission;

2) funds accrued in editions mass media and organizations of art the fee of employees who are on the payroll of these editorial offices and organizations, and (or) payment for their work, carried out at the rates (rates) of the author's (staged) remuneration;

3) wages paid in non-monetary form;

4) wages finally calculated at the end of the calendar year preceding the event, determined by the wage system, regardless of the time of accrual;

5) allowances and additional payments to tariff rates, salaries (official salaries) for professional skills, class, length of service (work experience), knowledge foreign language, work with information constituting a state secret, combination of professions (positions), expansion of service areas, increase in the volume of work performed, management of a team, etc.;

6) bonuses and remuneration provided for by the wage system;

7) payments related to working conditions, including payments due to regional regulation of wages (in the form of coefficients and percentage bonuses to wages), increased wages for hard work, work with harmful and (or) dangerous and other special conditions labor, for work at night, pay for work on weekends and non-working holidays, overtime pay;

8) other types of wage payments applied by the respective employer.

When calculating the average earnings are not taken into account payments social character and other payments not related to wages, in particular (clause 3 of Regulation N 922):

- material assistance (at birth, adoption (adoption) of a child, in connection with retirement due to disability or old age, in connection with the death of a member (members) of the employee's family, etc.);

- the cost of food, travel, training;

- the cost of sanatorium treatment;

- Reimbursement for utility bills.

When calculating average earnings, the calculation period excludes time, as well as the amounts accrued during this time, if (clause 5 of Regulation N 922):

- the employee retained the average salary in accordance with the legislation of the Russian Federation, with the exception of breaks for feeding the child, provided for by the labor legislation of the Russian Federation;

- the employee received temporary disability benefits or maternity benefits;

- the employee did not work due to downtime due to the fault of the employer or for reasons beyond the control of the employer and employee;

- the employee did not participate in the strike, but in connection with this strike he was unable to perform his work;

- the employee was provided with additional paid days off to care for disabled children and those disabled since childhood;

- the employee in other cases was released from work with full or partial retention of wages or without payment in accordance with the legislation of the Russian Federation.

To calculate the average earnings of an employee, the following formula is used (clause 9 of Regulation N 922):

Average earnings \u003d Average daily earnings x Number of days (calendar, working) in the period payable.

1. Average daily earnings for calculating compensation for unused vacation is defined as follows:

A) if the billing period is worked out by the employee in full:

Average daily earnings \u003d Salary for the billing period / 12 months. / 29.3 cal. days;

B) if the billing period has not been fully worked out by the employee or time has been excluded from it in accordance with clause 5 of Regulation N 922:

Average daily earnings \u003d Salary for the billing period / ((29.3 cal. days x Number of fully worked calendar months in the billing period) + Number of calendar days in not fully worked calendar months (calendar month)),

The number of calendar days in an incomplete calendar month = 29.3 cal. days / Number of calendar days of this month x Number of calendar days falling on the time worked in this month.

2. Average daily earnings for calculating other compensation payments, which rely on the employee during the reduction, is calculated as follows:

Average daily earnings \u003d Wage for the days worked in the billing period / The number of days actually worked in this period.

The procedure for calculating payments for reduction

Wage. Wages in case of reduction are calculated in the usual manner in proportion to the time worked in the month of dismissal, taking into account all additional payments and allowances.

Compensation for unused vacation. As noted above, the calculation of this compensation should be based on the average daily earnings of the employee and the number of days of unused vacation.

When determining the number of days of unused vacation, it is necessary to be guided not only by the provisions of the Labor Code of the Russian Federation, but also by the Rules on regular and additional holidays, approved by the NCT of the USSR on April 30, 1930 N 169, in the part that does not contradict the Labor Code of the Russian Federation, by the Letter of the Ministry of Health and Social Development of Russia of December 7, 2005 N 4334-17, as well as by the Recommendations<1>, Letters<2>Rostrud. Let's highlight the main points that you should pay attention to:

- every employee who has worked in an institution for at least 5.5 months has the right to receive a regular vacation;

- the next vacation is granted once a working year;

- the right to the next regular vacation on account of the new working year arises for the employee after 5.5 months from the end of the previous working year;

- an employee who has worked a full year is entitled to full compensation for unused vacation. In this case, the full working year is calculated from the date the employee was hired and is equal to the calendar year (12 months);

- an employee who has worked in an institution for more than one year and is dismissed due to a reduction in staff is entitled to receive full compensation for unused vacation for the last working year, provided that he has 5.5 or more months of experience in this period, giving the right to leave;

- if the working year is not fully worked out, vacation days for which compensation must be paid are calculated in proportion to the months worked. At the same time, surpluses that make up less than half a month are excluded from the calculation, and surpluses that make up at least half a month are rounded up to a full month;

- proportional compensation for unused vacation is calculated based on the calculation of 2.33 vacation days per month;

- rounding off the number of calendar days of unused vacation to whole days should be done not according to the rules of arithmetic, but in favor of the employee.

severance pay. The calculation of the severance pay is based on the average daily earnings of the employee and the number of working days according to the work schedule in the month following the day of his dismissal (Article 178 of the Labor Code of the Russian Federation).

Since the time period associated with the termination of labor relations begins the day after the calendar date that determines the end of labor relations, the countdown of the number of days payable must begin from the day following the day of dismissal (Article 14 of the Labor Code of the Russian Federation). For example, an employee was fired on November 14th. The calculation of the number of days payable should be made from November 15 to December 14.

Average monthly earnings for the period of employment. The average monthly salary is retained by the employee starting from the day following the day of dismissal (Article 14 of the Labor Code of the Russian Federation). Payments are terminated on the day preceding the day of employment, or on the day of the expiration of a two-month (three-month - for "northerners") period from the date of dismissal. For the first month of maintaining the average earnings for the period of employment, the employee receives a severance pay, therefore, the payment for the second month of the employment period is calculated with the offset of the severance pay (Article 178 of the Labor Code of the Russian Federation).

Additional compensation in the amount of average earnings. This compensation is paid on a par with other payments that are due to the employee to reduce the staff (number) of personnel. The amount of additional compensation for early termination of labor relations depends on the time between the actual date of termination of the employment contract and the date of dismissal (Article 178 of the Labor Code of the Russian Federation).

The countdown of the number of working days payable starts from the day following the day of termination of the employment contract and ends with the day of dismissal, which is indicated in the notice of staff reduction (number) (Article 14 of the Labor Code of the Russian Federation).

Example. An employee of the cultural institution received a notice of the upcoming dismissal on 10/17/2014 due to staff reduction. The official salary of the employee is 20,000 rubles, the work schedule is a 40-hour work week.

For the billing period (from 10/01/2013 to 09/30/2014), which was fully worked out, the following payments were made in favor of the employee:

- salary - 240,000 rubles;

- financial assistance in connection with the death of a family member - 5000 rubles.

In addition to the basic payments that are due to reduce the state, the employee must be paid compensation for 28 cal. days She got a new job on November 24, 2014.

Let's calculate the payments that are due to the employee in connection with the dismissal due to staff reduction.

1. Salary from 10/01/2014 to 10/17/2014 will be 11,304.35 rubles. (20,000 / 23 working days x 13 working days).

2. Compensation for unused vacation will be calculated as follows.

The average daily earnings will be equal to 682.59 rubles. (240,000 rubles / 12 months / 29.3 calendar days).

A one-time bonus by March 8 and financial assistance in connection with the death of a family member are not taken into account when calculating compensation, since they do not relate to wages (clause 3 of Regulation N 922).

Compensation for unused vacation will be equal to 19,112.52 rubles. (682.59 rubles x 28 calendar days).

The billing period (from 10/01/2013 to 09/30/2014) has been fully worked out, there are 248 working hours in it. days (on production calendar), so the average daily earnings will be equal to 967.74 rubles. (240,000 rubles / 248 working days).

The paid period is 19 working days. days (from 10/18/2014 to 11/17/2014).

The amount of the severance pay will be 18,387.06 rubles. (967.74 rubles x 19 working days).

4. The average daily earnings for the period of employment is calculated in the same manner as when calculating the severance pay.

For this period, there are 23 slaves. days, for 19 of which severance pay was paid, therefore 4 working days are payable. days

The average earnings for the period of employment will be 3870.96 rubles. (967.74 rubles x 4 working days).

Personal income tax and insurance premiums from reduction payments

personal income tax. Wages for the time actually worked, which is paid upon dismissal, as well as compensation for unused vacation, are subject to personal income tax on the basis of paragraphs. 6 p. 1 art. 208, paragraph 1 of Art. 209, paragraph 1 of Art. 210 and paragraph 3 of Art. 217 of the Tax Code of the Russian Federation.

Severance pay, average monthly earnings for the period of employment and compensation for early termination of an employment contract, paid in an amount not exceeding three times the size (six times for "northerners") of the average monthly earnings, are not subject to personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation, Letters of the Ministry of Finance of Russia dated May 15, 2013 N 03-04-05 / 16928, dated July 8, 2013 N 03-04-05 / 26273).

Insurance premiums. Wages for the month of dismissal and compensation for unused vacation are subject to insurance premiums to the Pension Fund, Social Insurance Fund and FFOMS, as well as contributions in case of injuries in general order(part 1 article 7 federal law N 212-FZ<3>, pp. "e" p. 2 h. 1 art. 9 of the Federal Law N 212-FZ, paragraphs. 2 p. 1 art. 20.2 of Federal Law N 125-FZ<4>).

As for the taxation of other compensation payments by insurance premiums to reduce them, in 2014 they are not subject to taxation in full, and from 2015 they will be subject to insurance premiums in excess of three times the size (six times - for the "northerners") of the average monthly earnings ( subparagraph “a” of paragraph 3 of article 2, subparagraph “a” of paragraph 1 of article 5, article 6 of the Federal Law of June 28, 2014 N 188-FZ).

So, let's highlight the main thing. Upon termination of an employment contract due to a reduction in staff (number), the employee is entitled to the following payments:

- salary for the month of dismissal;

- monetary compensation for all unused vacations;

- severance pay in the amount of average monthly earnings;

- average monthly earnings for the period of employment;

- additional compensation in the amount of average earnings (in case of early termination of the employment contract before the expiration of the two-month notice period).

Of these payments, only wages and compensation for unused vacation are subject to personal income tax and insurance premiums in full. The remaining compensation payments are not subject to personal income tax and insurance premiums. At the same time, we draw your attention to the fact that in 2015 the amounts of payments in the form of severance pay and average monthly earnings for the period of employment will be subject to insurance premiums in the part that exceeds a total of three times the amount (six times for the "northerners") of the average monthly earnings.

How often do we hear from friends: “They are laying off at work ...” or “I got laid off. What payments are due, do you know? Indeed, today, due to the unstable situation on the market, many companies reduce production volumes, master unfamiliar methods and technologies in order to increase demand for services and goods, and keep the company afloat. All this inevitably leads either to the reduction of unnecessary staff positions, or simply to a decrease in the number. What payments are due upon reduction, what is the procedure and nuances - we will deal with this today.

Dismissal on reduction

Reducing the staff of an enterprise or number is one of the reasons for terminating an employment contract (hereinafter - TD) at the initiative of the employer. Therefore, the worker must be paid appropriate compensation. About what payments are due to the employee during the reduction, will be discussed in more detail later, and now we will consider the essence of this procedure and features.

Dismissal in itself is not a very pleasant event, especially when it is not associated with the fault of the employee or his desire, but is carried out due to forced circumstances. Those in this case are usually a decrease in production volumes or the replacement of manual labor by automatic.

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

Quantity or state?

The head has the right to change the staff and structure of the enterprise, respectively, can eliminate unnecessary positions.

So, a reduction in staff is an exception to the corresponding schedule of staff units; downsizing - cutting the composition of employees of a particular position.

Naturally, vacancies should be liquidated initially, and only then the question arises of reducing real workers.

Dismissal is recognized as legal if the following conditions are met:

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

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

At present, the servants of Themis often take the side of the workers, since both the process and the interests of workers are grossly violated, for example, the 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 (individual entrepreneur - 2 weeks in advance), 3 months in advance - in case the opinion of this organization is not necessary for the employer, but it should be followed. The criterion for the mass layoffs is given in the relevant normative act. If minors are laid off, consent must be obtained. State Inspectorate labor.
3. Written warning of employees about future dismissal - 2 months in advance (under signature and individually). Other terms are provided for certain categories: for seasonal work - 7 calendar days in advance; employed at work for up to 2 months - for 3 days; without warning - with the written consent of the employee with additional compensation. This document can be served by mail. If the employee refuses to sign it, it is necessary to form an appropriate act in the presence of two witnesses.
4. Sentence vacancies(including underpaid). This can also be issued in the form of a notice, with which the employee must familiarize himself with signature and put a date, in case of refusal, an appropriate entry. The employer must offer positions in another locality when it is provided for by an agreement (collective or labor).
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 being terminated by reduction. An order is issued, an entry is made in work book, it, together with the calculation, is handed over to the employee on the last day.

It is in this order that redundancy is made. What payments are due and who is entitled to count on them, we will describe below.

severance pay

This term can be defined as a cash payment provided for by the labor legislation of the Russian Federation, paid upon termination of the 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 average monthly salary of an employee, 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 the TD on this basis, the above-mentioned allowance is accrued to the worker, and the average earnings for the time of employment for a new job, but not more than 2 months from the date of dismissal, remain with him.

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

The deadline for contacting the employment center may be extended when a citizen, for good reasons, could not come there. If he cannot be offered a job (including pensioners), a certificate is issued, by virtue of which the employer retains earnings for the employee for the 3rd month.

If the face 2 times without good reasons refused the offered job, then the above document is not issued, and earnings are not saved.

What are the payouts for downsizing? This question can be answered similarly to the previous one, since the elimination of a position is also a reduction in staff.

The first allowance is paid in advance upon dismissal, the subsequent - during the relevant months.

Additional compensation

What payments are due when reducing the staff, if the employee agreed to terminate the contract before the expiration of 2 months?

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

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

Contracts, labor or collective, may establish other, increased amounts of compensation, in no way infringing on the rights of employees 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 reduced? That is, people assume that payments also differ depending on how much a person has worked and what merits he has. In reality, the status of a pensioner does not affect the amount of severance pay, but the fact of having a significant length of service 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, in seasonal work employed in the Far North and equivalent areas.

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

• for workers in temporary (seasonal) jobs - an allowance in the amount of average earnings for 2 weeks;
• if the TD is concluded for a period of up to 2 months, no payments are made;
• for workers in the regions of the Far North and similar areas - according to general rule, while 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 last 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 saved 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 professional excellence employee, experience, skills and knowledge. Allocate ranks and categories. Qualification level- level of vocational training; category - the degree of education and work experience.

Labor productivity is at the discretion of the employer, he has the right to establish 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.

So, in the case when labor productivity and qualifications are identical among employees, the following categories will have an advantage:

• invalids of the Great Patriotic War;
• invalids of military operations for the defense of the Motherland;
• families with two or more dependents;
• persons whose other family members do not have their own earnings;
• employees with a health injury or occupational disease acquired from the employer;
• who improve their qualifications on the job in 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 cut

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

• pregnant women;
• women with children under 3 years old;
• 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 large family(children must be minors), if the other parent (legal representative) does not work under the TD.

Such labor benefits are provided by the legislator specifically to support motherhood and childhood.

At the same time, the category of pregnant women is almost inviolable. Even if at the time of issuing the order to reduce or after receiving the notification, it turns out that the woman is expecting a child, then it will not be possible to reduce her. If she was already dismissed, then it is necessary to reinstate her 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 on sick leave, he cannot be fired either!

Reduction by convention

IN Lately employers often try to cheat and circumvent the law in order not to pay severance pay by offering 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 reduced in this way:

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

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

It can be seen that an employee fired by reduction always receives more monetary benefits, so it is better for the employer to dismiss him for the first two reasons than to drag 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 are due to the employee in case of staff reduction, if he decided 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 go straight to court.

Let's say you were offended by the size of the severance pay, or not paid at all, or you think that you were illegally fired on a reduction, then you - to the servants of Themis. State your requirements in the form of a statement of claim and submit to the court.

Please note that the statute of limitations for labor disputes is 3 months, and if the dismissal is contested - 1 month.

What can be won in court, what payments are due for reduction in this situation?

1. Earnings for all days worked.
2. Compensation for unrealized vacation.
3. severance pay.
4. Average earnings for the respective months.
5. Compensation for moral damage.
6. Salary for the time of forced absenteeism (in a situation illegal dismissal and reinstatement).
7. Court costs, including attorney's fees.

From the above list, it can be seen that going to court is always associated with additional costs, for example, payment legal services, postage, etc. In addition, of course, litigation takes time and effort. Therefore, before going to court, you need to weigh all the pros and cons, assess the chances of winning from a professional lawyer.

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

So, let's summarize - let's determine what payments are due to the employee in case of staff reduction in any case:

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

These compensations must be mandatory, the rest are optional.

Thus, if you have been affected by such an unpleasant phenomenon at work, you need to be savvy in order to defend your rights. That is why you must certainly imagine how the dismissal procedure is carried out, what payments are due in case of reduction, 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.