Early reduction payments. Additional compensation in case of early dismissal of an employee who has been warned of redundancy is not subject to personal income tax and contributions

Russian legislation provides for two types of mandatory payments to an employee in the event of his dismissal. These are: wages for the worked period; reimbursement of material resources for unused main vacation. Additional compensations in case of dismissal due to staff reduction or termination of activities of a business entity should include: payments upon termination of an employment contract before its expiration; severance pay; monthly assistance for the period of the employee's new employment.

Pretend to additional payments not everyone can, but only citizens who work on the basis of an open-ended employment contract (hereinafter referred to as TD); as well as workers dismissed before the end of the fixed-term contract. Part-time workers, seasonal workers, as well as employees with whom the TD has been concluded for less than two months, have limited rights.

The Labor Code (hereinafter referred to as the Labor Code) obliges employers to notify their employees about dismissal if the company is downsized or the organization is liquidated two calendar months in advance. The employee must sign a statement that clearly states the last working day and the reason for the termination of the employment relationship.

The parties can agree to terminate the contract earlier than the deadline specified in the law. The employee must state written agreement for early dismissal.

In turn, the employer is obliged to pay him material compensation for the unworked time from the moment of termination of labor relations until the expiration of two months. Russian legislation gave the right to managers and owners of enterprises to simulate a similar situation, the worker cannot initiate early dismissal with the payment of material resources.

How much compensation will be paid in case of early termination of the TD?

The calculation of this type of compensation payments is based on average earnings employee for one work-day in the last reporting calendar year. To calculate this indicator you need to summarize the total amount paid for the year. It should not include all types of material assistance (for health improvement, travel, meals, etc.) and travel allowances. Divide the annual salary by the number of days actually worked (excluding weekends and holidays), as a result, we get the average pay for one thread day. 62 days is maximum amount days that can be compensated to an employee for early termination.

Right to compensation payments upon termination of labor relations before the end of the TD, the following citizens have:

• workers with whom an unlimited TD has been concluded;
• employees performing their functional duties on the basis of a contract with a certain time interval (these payments are due only in case of termination of labor relations before the agreed period).

If the liquidation of the company or the reduction of staff falls on the next day after the expiry of the deadline date of the TD, then there are no grounds for these payments. Prolong fixed-term contract- this is primarily the employer's right, not his duty.

The compensation must be paid to the worker on the last working day. The fact of receipt of material funds must be recorded with the signature of the employee in the accounting statement.

Who will not receive compensation payments for termination of employment before the contractual deadline?

The legislator does not provide for these payments to seasonal workers, part-time workers, as well as to employees with a fixed-term contract with whom is concluded for less than two months. All of the above rules apply to legal entities.

In Article 307 of the Labor Code, the legislator gave the authority to establish the terms of warning of dismissal, the procedure and amount of calculation of all payments to an individual ( individual entrepreneur) and the worker at his own discretion. This means that if the TD has compensation for early dismissal, severance pay, etc. payments are not provided, then the entrepreneur is not obliged to pay anything to the employee.

The Labor Code guarantees citizens subject to reduction or dismissal due to the liquidation of an enterprise, severance pay (hereinafter referred to as VP) in the amount of average earnings for one calendar month. It is also due to all employees of the enterprise, even if employees are temporarily disabled (officially registered sick leave), be in maternity or additional leave... To calculate this amount, you need: an annual salary for last year without taking into account all types of material assistance and compensation, divided by twelve months.

According to article 292 of the Labor Code, employees, with whom the contract is concluded for less than two calendar months, are entitled to an ID, if it is spelled out in the norms of the TD. The same procedure for calculating payments is also for employees engaged in labor activities for an individual entrepreneur.

Seasonal workers are eligible to receive IP in the amount of 2 weeks average earnings. Applicants can safely demand these types of material assistance from their managers.

The size of the ID, absolutely, as well as compensation payments, as well as material assistance for the period of employment, may be greater than those specified in the legislation. This nuance should be recorded in the points of labor or collective agreement and is mandatory for the implementation of the management of the enterprise.

The legislator also obliged employers to provide the laid-off workers with monthly payments until the new employment in case of staff redundancy or liquidation of the enterprise. Their size is the average earnings for one calendar month. GP is recorded as payment for the first month during the period of unemployment.

The general rule is that the employer must pay two months after the worker is fired. This means that for the first month the dismissed citizen will receive severance pay, and for the second - payments for the period of unemployment. However, there are exceptions to each rule.

A dismissed person can apply for payment of three months from the date of termination of employment, if:

● within two weeks former employee registered with the Employment Center;

● for objective reasons (independent of the person) he was not employed for two months;

● there is a corresponding certificate from the labor exchange.

Regardless of the circumstances, a dismissed citizen cannot apply for payment for a longer period after termination of employment. If the former employee finds a job before the specified time, this type of financial assistance is terminated.

Features of the accrual of material assistance for the period of employment to workers of the Far North and localities equated to this area

For workers in the Far North and similar areas, there is special order calculation of payments for the period of employment. On a mandatory basis, dismissed employees will receive monthly subsidies for three calendar months... Severance pay, as in general order, is recorded as payment for the first month of unemployment. Dismissed workers can receive additional payments for the 4th, 5th and 6th months of searching for a new job in the event of:

● if within thirty days they have registered at the labor exchange;

● for three months they were not provided with a new job;

● The employment center provided a certificate confirming the first two points.

To receive all payments, the employee must confirm the absence of an official place of work. New entries in the work book this employee for the specified period should not be - this will become the basis for compensation.

The countdown of the time provided for employment begins on the next day after the date specified in the order to dismiss the employee. Non-working days(weekends and holidays) also counts.

All payments to citizens who have worked at enterprises or organizations, as well as for individual entrepreneurs for less than six calendar months before dismissal or reduction, are made according to the general rules given above.

60 days after the head of the enterprise announced the termination of the economic activity, an order is issued to liquidate the organization. Legal entities must make all settlements with former employees before the specified moment. If a citizen has not received any payments and compensation, there will be no one to make claims after the liquidation of the company. The Civil Code of the Russian Federation (Article 61) states that the obligations and rights of the organization do not pass to anyone.

Though Civil Code The Russian Federation guarantees the liquidated company the cancellation of its obligations, including to former employees, it is imperative to make all the necessary payments and compensations. Evasion of the issuance of the proposed material means former employees the company will be regarded as fraudulent.

Employees who are subject to dismissal due to the reduction in the number of staff of the company or in connection with the termination of the activity of a business entity apply for on their own it is forbidden. In this case, the employee initiates the termination of labor relations, and therefore cannot claim any payments.

An individual entrepreneur and a citizen concluding a contract must detail all its points as much as possible. It is he who will become the guarantor of the fulfillment of their obligations by both parties and the basis for the restoration of violated rights in court. The absence of clauses regulating compensation payments to an employee upon dismissal due to a reduction in the number of employees or upon the surrender of a patent of an individual entrepreneur will become a dominant factor in resolving controversial issues in court.

Individual entrepreneurs, in contrast to enterprises and organizations, are responsible to partners and employees with their own property. This means that even after the surrender of the patent, the employee can receive all compensation payments stipulated in the TD by filing a civil claim in court.

The Code of Administrative Violations in force on the territory of the Russian Federation provides for two types of liability for legal and individuals for depriving dismissed employees of compensations and payments: a fine and a temporary suspension of activities. The timing and amount of administrative penalties directly depend on the withheld by the employer or official amounts.

Officials, through whose fault compensation payments were not paid, may incur disciplinary responsibility(reprimand, demotion, etc.). For a second similar violation, they face disqualification for up to 3 years.

The higher the amount of compensation withheld, the more likely you are to be criminally liable.

Employees who abuse the norms of the law, hiding their employment, will also be held liable to employers and will reimburse all losses.

Related entries:

No related records found.

Additional compensation paid before the expiration of the notice of dismissal in connection with the layoff or liquidation of the organization is exempt from tax and in full. Such clarifications are contained in the letter of the Ministry of Finance of Russia dated 07/31/17 No. 03-04-07 / 48592. The Federal Tax Service, in turn, sent the explanations of the Ministry of Finance to its territorial bodies for use in work (letter).

As you know, payments in the form of severance pay and average monthly earnings for the period of employment in the part exceeding in general three times the average monthly salary of an employee (six times the size - for employees dismissed from organizations located in the Far North and equivalent areas) are not taxed Personal income tax and insurance premiums (clause 3 of article 217, clause 1 of article of the Tax Code of the Russian Federation).

When an employee is laid off due to a layoff, the employer must pay him severance pay in the amount of the average monthly earnings. Also, employees retain their average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay) The employer is obliged to notify the employee of dismissal due to the liquidation of the organization, reduction of the number or staff at least two months in advance (Art. RF). Moreover, with the consent of the employee labor Relations with him may be terminated before that time. In this case, the employee is paid additional compensation for early dismissal in the amount of average earnings. It is calculated in proportion to the time left before the expiration of the notice of dismissal.

Thus, if an employee is dismissed before the expiration of the notice of redundancy, he is entitled not only to severance pay and average monthly earnings for the period of employment, but also additional compensation for early dismissal.

According to specialists from the Ministry of Finance, additional compensation for early dismissal of an employee does not apply to severance pay and average monthly earnings for the period of employment, not taxable and personal income tax in the part that does not generally exceed three (or six) times the average earnings. It turns out that payments exempted from taxation by contributions in a total amount not exceeding three times (or six times) the size of the average monthly earnings in general include:

• severance pay paid in connection with the reduction of staff (number of employees) or the liquidation of the organization;
• average monthly earnings for the period of employment (Art. Labor Code of the Russian Federation).

And additional compensation is completely exempt from insurance premiums and personal income tax (the limit in the amount of three (six) average monthly earnings is not applied).

When an employee is left without work in the absence of his own fault, the law guarantees him the due compensation, since he is forced to engage in employment ahead of time. But this is not the only payment stipulated by the law.

The Code obliges the employer to accrue the following amounts to subordinates dismissed in the event of a reduction in staff:

• Laid due to premature termination labor activity compensation payment. Its size is influenced by the average earnings and how many days an employee could work from the day when the termination order was signed working together until the day the foreseen warning period expires.
• Guaranteed monetary value due to the termination of the contract on the initiative of the management (severance pay). Its value should correspond to the size of the monthly average (part 1 of the TC).
• Money paid for the months following the month of dismissal is credited to expand the employee's ability to find a new job.

  The first part of Article 178 determines the value of this payment as a value equal to the average earned during the period of employment. The indemnifying payment can be received if the following conditions are met:

1. the former subordinate did not manage to find a new job for himself in the two months given after the signing of the order of settlement;
2. he submitted to the accounting department work book, in which there is no entry about the new period of labor activity.

The amount listed as severance pay is considered to be the appropriate payment for the first month of the job search.

If the dismissed person got a job within a month subject to compensation payments, then by providing a certified copy of the work book, he can demand the accrual of payments for the days that have passed from the first day of the month until the day of official admission to new job.

If the downsized employee took leave for the next working year (in advance), then the amounts for it are not withheld, in contrast to the case of a regular dismissal.

1. Amounts provided for accrual in the labor process, which for various reasons were detained.
2. Payments provided for in the event of dismissal by internal agreements (for example, the Collective Agreement).

Calculation and examples

Average monthly income

Calculus average size earned per month is regulated by regulation No. 922 on average earnings (approved in December 2007). It involves the performance of certain actions:

The average monthly salary includes:

• employee salary ( hourly payment working hours);
• incentive payments (allowances, coefficients, bonuses);
• amounts paid as compensation for expenses related to work.

The calculation of average monthly earnings does not include:

1. vacation payments;
2. sick leave payment;
3. amounts paid as compensation for expenses not related to the performance of work duties (compensation for a vacation that was not taken by an employee, etc.).

An example of calculating the average monthly salary:

The conditional worker has been notified of the upcoming early termination of the staff reduction agreement effective June 1, 2016. His rate is 25,000 rubles. By mutual agreement, the employee is ready to leave on April 20.

25,000 * 11 months +17,250 = 292,250 rubles - the amount earned for the period subject to accounting, or the calculation base.

We calculate the average daily salary: 292,250 / 248 = 1,178.43 rubles.

We calculate the average monthly salary: 1,178.43 * 22 = 25,925.46 rubles.

Compensation for unused vacation

To find out what reimbursement payment is due to the dismissed person for the vacation intended for him in the accounting period, do the following calculations:

1. The number of full months of work for the billing period is multiplied by a coefficient taken as the average number of days in a month -29.4.
2. Days are calculated in not fully worked months (if any).
3. Adding the days from the point of calculation 1 and 2, we get the number of calendar days in the billing period for which the vacation is due.
4. The average daily pay for calculating vacation pay is calculated: the amount of the calculation base is divided by the number of days (point 3 of the calculation).
5. Calculate the amount of compensation for unchecked vacation, multiplying the number of vacation days by the average earnings from paragraph 4.

An example of calculating compensation for unused vacation:

Consider a resignee who has worked for the accounting period for eleven full months. One month is considered incomplete because the employee was sick for five days in October.

• 11 months * 29.4 = 323.4 days.
• Subtracting 5 days of illness, we take 26 days for the calculation in October: 29.4 / 31 * 26 = 24.66 days.
• The accounting period includes the following number of working days: 323.4 + 24.66 = 348.06 days. This is the number of days that must be reimbursed as unused leave.
• Calculation of the average daily salary for vacation pay per day: 292,250 / 348.06 = 849.42 rubles.
• Compensating payment for unrealized vacation (28 calendar days) will be: 849.42 * 28 = 23 783.76 rubles.

Earnings for the last period

In calculating wages for labor, the month of signing the dismissal order is no different from other periods. All allowances and coefficients remain unchanged. The calculation includes the days actually worked from the beginning of the month until the last day of performance of labor duties.

The employee taken as an example, having quit in April, managed to work out 13 days out of 21. His salary for April will be calculated as follows: 25,000 rubles (salary) / 21 * 13 = 15,476.19 rubles.

Reimbursement accruals

Faced with dismissal as a result of layoffs, ex-subordinate can count on the following reimbursement charges:

1. severance pay equal to the average monthly salary. In the given example - 25,925.46 rubles;
2. payment of the days remaining until the date of termination of the contract. In our example, this is May 19 and 8 days remaining in April. The company must compensate for 8 + 19 = 27 days: 1,173.09 * 27 = 31,673.43 rubles;
3. replacement payment for due and unused vacation - 23,783.76 rubles;
4. payment for the days worked out in the month of dismissal - 15,476.19 rubles;
5. payment for the second month of job search time. In the proposed version of the calculation, there are 42 working days in two months, therefore: 1,173.09 * 42 = 49,269.78 rubles - including severance pay (25,925.46 rubles). Subtracting it, we get: 49 269.78-25 925.46 = 23 344.32 rubles.

Conditions after termination of the contract

Cash payment for the first 30 days after the signing of the order is provided as mandatory. Its size is not affected when the ex-subordinate is employed again.

For the next 30 days, according to the first part of Article 178 of the Labor Code, payments will be made only to those who registered at the Labor Exchange no later than 14 days following the official termination of work.

The opportunity to receive compensation payments is provided if there is a corresponding conclusion of the Labor and Labor Exchange.

Having settled in a new job, the dismissed person can receive compensation at the place of previous activity for the days that have passed from the beginning of the month to the date of placement in a new place. You only need to provide copies from the work book, certified by the new management, with a record of the date of the official start of the new labor stage.

How long is the employer obliged to make the calculation (what to do if the calculation was not made or the entire amount was not paid).

Labor legislation (the second part of Article 140 of the Labor Code) obliges the head of the company to accrue guaranteed cash payments on the day the employee last performs his official functions, or on the day following the request of the former employee.

Article 140 of the Labor Code of the Russian Federation. Terms of settlement upon dismissal

Upon termination of the employment contract, the payment of all amounts due to the employee from the employer is made on the day of the employee's dismissal. 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 dismissal employee submits a payment request.

In the event of a dispute over the amount due to the employee upon dismissal, the employer is obliged to pay the amount not contested by him within the period specified in this article.

For payments during the period of employment, the law does not provide for clear deadlines; they can be issued on any day included in the period.

The amount of the amounts paid out is established by law, therefore, the reduction of amounts is considered a violation of it and is prosecuted accordingly. Any controversial issues can be resolved through the court.

Conclusion

To summarize, the smooth implementation of the staff reduction procedure requires the timely payment of all compensating payments in the amount provided for by the approved calculation.

If the employee himself insists on premature dismissal, the employer must proceed from the production situation and his own preferences, since there are no direct instructions in the code on this matter.

If the employee is interested in early retirement, and the boss requires his presence in the company for the full period provided by law, he can offer to formalize the employee's dismissal of his own free will.

The resigning person should be aware that such an option deprives him of all the guaranteed amounts of money that are provided for by the protection of the employee's rights.

Upon dismissal due to staff reductions in 2019, it is necessary to calculate compensation, severance pay and earnings for the period of employment. The list of payments that an employee can qualify for depends on the reason for the dismissal. We will show how to calculate payments with examples, and we will analyze in detail the rules for issuing redundancies.

What payments should be calculated when an employee is laid off in 2019 according to the Labor Code

In 2019, officials did not make any changes to the composition and procedure for assigning payments to layoffs. Last changes affected only the grounds for dismissal. Officials banned dismissal for a fake diploma and terminate the contract with a pregnant woman, even if she misses work without good reason.

If the employment contract is terminated due to staff reductions, the dismissed employee, in addition to wages and compensation for unused vacation is due three more payments:

• compensation in case of early termination of the employment contract;
• severance pay;
• earnings for the period of employment.

Special guarantees for redundant employees may be established in industry agreements. However, for commercial organizations such agreements are binding only if they join them (Article 48 of the Labor Code of the Russian Federation). For current industry agreements, see table.

How to calculate compensation due to early termination of an employment contract with a reduction

By general rule the employer is obliged to notify the employee about the upcoming termination of employment due to the reduction in the number of employees at least two months before the last day of work in accordance with article 180 of the Labor Code of the Russian Federation.

At the same time, the parties can agree that the employee will not work out the prescribed two months, but will quit earlier. Officials provided for such a procedure in the Labor Code, but the employee must give his written consent. In this case, the employee is entitled to an additional size Money- compensation for layoffs due to staff reductions in 2019.

Payments are calculated for the period from the date of dismissal until the date when two months have expired from the date of the warning. But note: to fire an employee early is the employer's right, not an obligation. If a manager is dismissed, then compensation is paid in the amount specified in the employment contract with him, but not less than three times the average monthly earnings (Article 279 of the Labor Code).

An example of calculating severance pay and compensation for the dismissal of an employee before the expiration of the warning period for the upcoming liquidation of the organization:

In January, the organization's management decided to liquidate and dismiss employees in March. On January 14, storekeeper P.A. Bespalov was informed of the upcoming dismissal, scheduled for March 20.
On January 29, Bespalov was offered to resign from January 30 (that is, earlier than the scheduled day). Bespalov agreed to his dismissal.
Upon dismissal, he was paid:
- severance pay;
- compensation.
Bespalov's average daily earnings are 1,313 rubles per day.
The accountant calculated the severance pay for the first month after the dismissal - from January 31 to February 28. During this period, according to Bespalov's work schedule (five-day working week), 19 working days. The severance pay was 24,947 rubles. (1313 RUB / day? 19 days). It was paid to the employee on the day of dismissal, January 30.
Compensation for Bespalov is due for the period from January 31 to March 20 inclusive. This time accounts for 33 working days. The amount of compensation was:
1313 rub / day ? 33 days. = RUB 43,329
The total amount paid to Bespalov on the day of dismissal was:
RUB 24,947 + RUB 43,329 = RUB 68,276

How to calculate severance pay when an employee is laid off

When an employment contract is terminated due to a layoff of staff, the dismissed employee is entitled to severance pay in the amount of the average monthly earnings (Article 178 Labor Code RF). Moreover, this amount is paid to the employee even if he finds a job the next day after the termination of the employment contract with your company.

The severance pay is equal to the average monthly earnings and is the minimum limit. At the same time, the average monthly earnings of an employee who, during the billing period, worked in full the norm of working time, cannot be less than one minimum wage. After all, such a minimum is set for wages (Article 133 of the Labor Code).

Nina Kovyazina answers,

Deputy Director of the Department medical education and personnel policy in healthcare of the Ministry of Health of Russia

Even a working retiree is entitled to severance pay due to layoffs. Retirees have the same rights and responsibilities as the rest of the organization.

Calculate the severance pay upon dismissal due to redundancy in 2019, use the formula:

How to calculate the average earnings for the period of employment when an employee is laid off

The employee retains the average monthly earnings for the period of employment, but not more than two months from the date of dismissal. Moreover, this amount takes into account the size of the severance pay already paid.

Sometimes the average monthly earnings are retained for the third month from the date of dismissal. Such a decision is made by the employment service if the employee registered at the labor exchange within two weeks, but did not return to work three months after the dismissal (Article 178 of the Labor Code of the Russian Federation). For payment, you will need a certificate from the employment service.

Calculate the average earnings for the period of employment for the second and third months using the formula:

An example of calculating the payment of average earnings for the period of employment. An employee took a new job in the middle of the second month after being fired:

In the organization of P.A. Bespalov works as a storekeeper, his salary is 20,000 rubles. per month. On January 12, he was fired in connection with the liquidation of the organization. Therefore, Bespalov is entitled to:
- severance pay;
- average earnings for the period of employment.
The severance pay to Bespalov was paid on the day of his dismissal - January 12. For determining severance pay, the billing period is the time from January 1 to December 31 of the previous year. Bespalov's earnings for this period amounted to 240,000 rubles. (20,000 rubles / month? 12 months). During the billing period, he worked for 247 days.
Bespalov's average daily earnings were:
RUB 240,000 : 247 days. = 971.66 rubles / day
In the first month after dismissal (from January 13 to February 12) 23 working days. The severance pay was:
23 days. ? 971.66 RUB / day = 22 348.18 rubles.
The day after his dismissal, Bespalov was registered with the employment service.
During the first month after his dismissal (from January 13 to February 12), Bespalov was unable to find a job. In order to maintain the average earnings for the first month after the dismissal, the accountant counted the amount of the severance pay paid in connection with the dismissal.
During the second month (from February 13 to March 12) after his dismissal, Bespalov got a new job. The date of employment is March 1. In the second month after his dismissal, from February 13 to February 28, inclusive, the number of days during which Bespalov was considered unemployed was 11 working days, which confirms the absence of entries in the work book. On March 2, he was paid an average salary for 11 working days. The amount of average earnings for the period of employment in the second month after dismissal was:
11 days ? 971.66 RUB / day = 10 688.26 rubles.

Features for the Far North

Payments for redundancy in 2019 in the Far North and equivalent areas are higher than in other Russian regions. The fact is that these companies can keep the average earnings for the employee during the fourth, fifth and sixth months. This is also done by decision of the employment service. But on condition that within a month after the dismissal, the employee applied to this service, and he was not employed (Article 318 of the Labor Code of the Russian Federation).

Average earnings for a period of employment of up to three months (including severance pay) is retained for employees who work in the Far North and equivalent areas, upon dismissal due to:

• liquidation of the organization;
• staff reduction.

In contrast to the general rule, such employees do not need a decision of the employment service to maintain the average earnings for the period of employment for the third month. In addition, the average earnings in these cases can be retained for such employees for a period of up to six months on the basis of the decision of the employment service. This is possible if, within a month after the dismissal, the employee applied to this service, but was not employed by it.

Calculation of payment upon dismissal to reduce the number of employees in 2019

Payments for the reduction of an employee in 2019 are calculated from the average earnings. First, take all the accruals in the billing period. This is the 12 calendar months that precede dismissal. Do not include non-wage amounts in the calculation. That is, material assistance, payment of the cost of food, travel, training, utilities and rest is not necessary to take into account.

For 12 months, an employee could be on vacation, get sick, not work due to downtime, or be on a business trip. This time is excluded from the billing period. Accordingly, they are not taken into account when calculating average earnings and accruals for these periods.

Note that severance pay is calculated based on the work schedule of a particular employee whom you decided to fire. In the same way, severance pay is paid to an employee who has a part-time working week. If you still have questions about the calculation, enter it in the search box below and get an answer in the Glavbuh System.

How to issue a layoff of an employee when downsizing in 2019

When dismissing an employee due to a reduction in the number or staff, it is necessary to follow the legally established procedure for such dismissal (Articles 179 and 180 of the Labor Code of the Russian Federation). Any violation may become a reason for the employee's reinstatement at work with payment for the time of forced absenteeism (Article 394 of the Labor Code of the Russian Federation).

If you leave, follow these steps:

• issue an order to reduce the number or staff;
• Determine if any of the employees have the preferential right to stay at work;
• form a list of downsized employees (positions);
• notify the employee about the upcoming dismissal;
• offer the fired another vacant post;
• complete the transfer of those who agreed to the vacancy;
• inform about the upcoming layoffs in the trade union and the employment service;
• agree with the union on the decision to fire union members;
• pay severance pay and compensation;

Penalties for late transfer of payments upon dismissal

An employer who does not pay the due amounts to a dismissed employee on time or gives less will be fined by inspectors under Part 6 of Article 5.27 of the Administrative Code. For entrepreneurs, the fine will be from 1,000 to 5,000 rubles, and for companies from 30,000 to 50,000 rubles.

In addition to the fine, the employer must pay the employee interest for the delay (Article 236 of the Labor Code). Its size is 1/150 of the key rate. Compensation will be calculated from the next day after the deadline payments on the day of actual settlement inclusive.

Under certain conditions, you can apply for early dismissal for redundancy. Let's consider how to do it correctly in order to avoid litigation.

Downsizing remains the most popular cost optimization measure among employers. As a general rule, employees are warned about the upcoming dismissal on this basis in person and against signature at least two months in advance (clause 2, part one of article 81, part two of article 180 of the Labor Code of the Russian Federation).

Under what conditions can you issue early dismissal

In the text of the notice of dismissal or in another document, the employer has the right to offer the employee to terminate the employment contract before the two-month warning period expires (part three of article 180 of the Labor Code of the Russian Federation). You can be dismissed early if two conditions are met:

• reduction is carried out in accordance with the procedure, established by law;
• the employee agreed to quit early with additional compensation.

Legality of reduction. The Labor Code regulates in detail how to make reductions. So, the decision to reduce the staff must be notified to the employment service and the trade union (if any) no later than two months, and if a mass dismissal is planned, no later than three months before the start of termination of employment contracts (part one of article 82 of the Labor Code of the Russian Federation, Article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1, determination of the Constitutional Court of the Russian Federation of January 15, 2008 No. 201-О-P).

It is necessary to take into account the priority right of employees to stay at work, to offer vacancies to the dismissed (part three of article 81, article 179, part one of article 180 of the Labor Code of the Russian Federation).

Employee consent. The employee must give written consent to early dismissal. It can be a lettering on a notice or a separate document. To prevent the employee from making mistakes, offer to write a statement indicating the reason for dismissal, the details of the notice of reduction and the date on which he agrees to early leave (sample below).

Consent to early dismissal

If the employee does not indicate the date or grounds for dismissal in the application, the court has the right to recognize the termination of the employment contract as illegal (appeal ruling of the Moscow City Court dated June 2, 2016 in case No. 33-14856 / 2016).

The law does not prohibit an employee from revoking an early termination consent. However, the employer is not obliged to follow his lead. The withdrawal of consent is not essential, since the employee is fired on staff reduction, and not of his own free will.

Therefore, the employer has the right not to take into account the change in the position of the employee and dismiss him on the agreed date. This is confirmed and arbitrage practice(ruling of the Moscow City Court of May 26, 2011 in case No. 33-15827).

Sometimes the employee himself demands that he be fired early. If you interpret the Labor Code literally, the employer is not obliged to do this (part three of article 180 of the Labor Code of the Russian Federation). Until the deadline for notification of the reduction has expired, the employee has the right to resign of his own free will (clause 3 of part 1 of article 77 of the Labor Code of the Russian Federation). But then he will lose the right to severance pay and average earnings for the period of employment (Articles 178, 180 of the Labor Code of the Russian Federation).

Thus, this situation will inevitably lead to conflict and litigation. Therefore, we recommend that you agree to early dismiss an employee to lay off in the event that such an initiative comes from him.

How to issue a dismissal order

The dismissal order is drawn up according to unified form No. T-8 or another, developed in the organization (sample below). Labor contract terminated under clause 2 of the first part of Article 81 of the Labor Code. As the documents - the grounds indicate a notice of the upcoming dismissal on staff reduction, written consent (statement) of the employee for early dismissal.

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What payments are due to an employee in case of early layoff

On the day of dismissal, the employee is paid the final settlement (Articles 84.1, 140 of the Labor Code of the Russian Federation). It includes salary, compensation for unused vacation, severance pay in the amount of average monthly earnings.

The laid-off employee retains the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay). In exceptional cases, the average monthly earnings are retained for the third month from the date of dismissal.

This decision is made by the employment service. In practice, the question arises, from what date, in case of early reduction, to calculate the period of employment, for which the employee is entitled to the average monthly earnings. After all, the date of dismissal is different from that indicated in the notice. As follows from the Labor Code, this period is calculated from the actual day of dismissal, and not from the date set in the notification (Article 178 of the Labor Code of the Russian Federation).

In addition to the listed payments in case of early dismissal, the employee is entitled to additional compensation. It is calculated from the average earnings in proportion to the time remaining until the end of the notice of dismissal (formula below). To calculate the average daily earnings, the procedure established by the Decree of the Government of the Russian Federation of December 24, 2007 No. 922 is applied.

Example:

On September 14, 2016, the accountant Olga M. was served with a notice of dismissal due to staff reductions on November 15, 2016. The employee agreed to early dismissal on October 3, 2016. The average daily wage is 1138 rubles. Olga works on a five-day calendar working week... Thus, additional compensation must be calculated within 30 working days.

The amount of compensation will be 34,140 rubles. (1138 rubles × 30 days).

If the employer does not pay additional compensation, this will not affect the legality of the dismissal. However, the dismissed employee will be able to recover the amount of compensation through the court (appeal ruling of the Moscow City Court of October 6, 2015 in case No. 33-36827 / 2015).

How to make an entry in the work book and personal card

The work book is filled in according to the Rules for maintaining and storing work books, approved by the decree of the Government of the Russian Federation of April 16, 2003 No. 225 and the Instruction approved by the decree of the Ministry of Labor of Russia dated October 10, 2003 No. 69.

An entry in the work record of an employee dismissed early on staff reduction will not differ from the entries in the work record of employees dismissed on the same basis within the period provided for in the notification (sample below).

A sample of registration of a work book

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An entry in the employee's personal card will also be standard (sample below). In the work book and personal card, information is not entered that the dismissal was early.

Personal card entry

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