Recently, the news from the personnel officers is very similar to the news about the losses during the war: new cuts are being reported daily. Companies are laying off people to improve the financial situation, shaken by the crisis.
When reducing the number or staff of employees, it is important to follow the dismissal procedure and determine the cash payments due to the employee.

Who to cut

The procedure and conditions for the dismissal of a redundant employee are governed by the norms of Articles 81, 178-180 of the Labor Code of the Russian Federation.

The downsizing procedure has some legal restrictions. First of all, a list of employees who cannot be fired is defined:

• women on parental leave (Article 256 of the Labor Code of the Russian Federation);
• pregnant women;
• women with children under three years of age;
• single mothers raising a child under the age of 14 (a disabled child under 18);
• other persons raising children under the age of 14 (a disabled child under 18) without a mother (Article 261 of the Labor Code of the Russian Federation).

When an employee under the age of 18 is laid off, dismissal can only take place with the consent of the relevant state labor inspectorate. If the firm removes from office an employee who is on sick leave or vacation, its actions will be recognized as illegal. An exception is dismissal in connection with the liquidation of the organization or the termination of the activity of an individual entrepreneur.

Part 1 of Article 179 “Preferential right to remain at work in the event of a reduction in the number or staff of employees” of the Labor Code of the Russian Federation is one of the rules governing the procedure for dismissal due to staff reductions. It defines a rule based on objective criteria for the selection of specialists who will remain in work. An employee may request a judicial review of whether the employer correctly applied the specified criteria when reducing staff. To do this, he only needs to write an appropriate application.

Thus, according to this article, when reducing the number or staff of employees, specialists with higher labor productivity and qualifications have the preferential right to stay at work. In the case when you need to choose between employees for whom these indicators are equal, preference is given to:

• family professionals if they have two or more dependents (disabled family members who are on full content the employee or those receiving assistance from him, which is for them a permanent and main source of livelihood);
• employees whose families do not have other self-employed members;
• specialists who have received from this employer an industrial injury or occupational disease;
• disabled veterans of the Great Patriotic War and military operations for the defense of the Fatherland;
• employees who improve their skills in the direction of the company on the job.

The collective agreement may also provide for other categories of employees who enjoy the preferential right to remain at work with equal labor productivity and qualifications.

It is important to note that compliance with the right to preferential retention at work must be documented. In practice, a Comparison Table is compiled for this.

constitutional opinion

In ruling No. 581-O of December 21, 2006, the Constitutional Court tried to give its own vision of the purpose of applying Article 179 of the Labor Code of the Russian Federation and expressed an opinion on the need for its clarification by the specialists of the Supreme Court.

Having established labor productivity and qualifications as criteria for selecting workers to remain in the state, the legislator proceeded both from the need to provide additional measures to protect the rights of more professional specialists, and from the employer's interest to continue labor relations with workers whose qualifications and labor efficiency are higher.

As already noted, at the request of the employee, the legality of the company's actions during staff reductions can be verified in court. Meanwhile, by virtue of Articles 118 and 126 of the Constitution of the Russian Federation, the choice of the rules of law that should be applied, taking into account the actual circumstances, to disputable legal relations, and their interpretation belong to the powers of the court of general jurisdiction resolving the dispute. And the legality and validity of his decision in the manner prescribed by the Code of Civil Procedure, check the higher courts.

In other words, the Constitutional Court repeated the truisms about understanding the category of “preferential right” in a broad sense, which provides a higher degree of protection of the interests of employees than its narrow interpretation. By the way, the Supreme Court has not yet clarified the procedure for applying Article 179 of the Labor Code of the Russian Federation.

How to cut

An order to reduce the number or staff must be issued at least two months before the expected start of layoffs (Article 180 of the Labor Code of the Russian Federation). The document must indicate the reason for the reduction. To avoid confusion, the two-month period is supposed to be counted from the next day after warning the employees. Not later than three months before the planned layoffs, it is necessary to notify the employment service authorities in writing about the upcoming mass layoff of employees.

In this case, the dismissal of an employee can be made only after the exclusion of his position from the staff list. First you need to check if there are homogeneous vacancies.

Another obligation of the employer is to offer in writing to each employee subject to the reduction a transfer to another job. First of all, we are talking about a vacant position that corresponds to an employment contract (part 1 of article 180 of the Labor Code of the Russian Federation). In the absence of such, the company must offer the employee a lower position, which he can perform, taking into account his education, qualifications, work experience and health.

There may be the following options:

• if the employee agrees, then it is necessary to follow the transfer procedure;
• if the employee refuses, then it is necessary to issue a written refusal (this will allow the employer to have further evidence of the offer to the employee of another job and evidence of his refusal);
• if the enterprise cannot provide the employee with a vacant position, he must draw up an act on the impossibility of such a transfer;
• if a specialist is offered vacancies, but he refuses to familiarize himself with such a proposal in writing, then an act is drawn up about this.

Please note: it is necessary to offer an employee a list of all available vacant positions that he can perform, taking into account the profession, qualifications and previous position, both at the time of warning him of the reduction, and within two months before the day of dismissal, if new vacancies have appeared. On the day of parting, you will again have to submit to the employee for signature a similar list of new vacancies that have appeared. It is necessary to control that all of them are present in the staff list with a fixed salary (rate) and are provided with a job description.

It should be borne in mind that dismissal due to reduction is allowed only if it is impossible to transfer the employee with his consent to another job (Article 81 of the Labor Code of the Russian Federation). Failure to comply with this requirement is a violation of labor legislation and entails a fine under Article 5.27 of the Code of Administrative Offenses of the Russian Federation in the amount of 5 to 50 minimum wages.

Farewell settlement

severance pay

Upon termination employment contract in connection with a reduction in the number or staff (hereinafter referred to as the reduction in staff), the dismissed specialist is entitled to severance pay. Its size cannot be less than the average monthly salary of an employee (part 1 of article 178 of the Labor Code of the Russian Federation). When calculating average salary it is necessary to be guided by the Regulation approved by the Decree of the Government of the Russian Federation of December 24, 2007 No. 922.

If an increased amount of severance pay is specified in the collective or employment agreement, then the employer is obliged to pay this particular amount.

Example 1

AT construction company in connection with the decrease in the total volume of work, the staff was reduced by one unit. As a severance pay, the employee was paid an amount equal to his average earnings in the amount of 25,500 rubles.

Example 2

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On the manufacturing plant the position of process engineer fell under the reduction of staff. Despite the fact that the average salary of an employee was 35,230 rubles, he received a severance pay in the amount of 45,000 rubles, since it was this amount that was indicated in the collective agreement as a severance pay, which is due in case of dismissal during the liquidation of the organization, downsizing and staff and upon termination of the employment contract by agreement of the parties.

Wage

In addition to the severance pay, in case of staff reduction, the specialist retains the average salary for the period of employment (Article 178 of the Labor Code of the Russian Federation). True, he will be able to receive these funds no longer than two months from the date of dismissal. At the same time, the entire amount of severance pay is included in the average earnings. In exceptional cases, payments are retained by the employee for the third month. Such a decision can be made by the public employment service, provided that within two weeks after the dismissal, the employee applied there and, for reasons beyond his control, was not employed.

In some cases, the employee has the right to count on another, the so-called "compensation" compensation. By general rule employees must be warned at least two months before the upcoming dismissal due to a reduction in the number or staff. If the employee agrees to terminate the employment contract ahead of schedule (which must be expressed in writing), then upon dismissal, he has the right to count on additional compensation in the amount of average earnings, calculated in proportion to the time remaining until the end of the dismissal notice period.

personal income tax and unified social tax

The severance pay in the amount of the average monthly salary provided for by law upon termination of an employment contract due to a reduction in staff is not subject to personal income tax and unified social tax in accordance with Articles 217 and 238 of the Tax Code. As for the additional compensation that is paid to the specialist before the expiration of the two-month period, it is also not included in the tax base for personal income tax and unified social tax (Articles 217, 238 of the Tax Code of the Russian Federation).

Article 178 provisions Labor Code in respect of other cases of severance payments and additional compensation or the establishment of their increased amounts are permissive. The amounts of such payments cannot be exempt from personal income tax and unified social tax, since they cannot be attributed to the benefits specified in articles 217 and 238 of the Tax Code. Consequently, payments to employees in an increased amount in connection with the liquidation or reduction of staff are subject to personal income tax and unified social tax on a general basis (letters of the Ministry of Finance dated February 21, 2007 No. 2005 No. 28-11/61080).

Example 3

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An employee of the planning department of a commercial firm was warned of an impending redundancy on January 30, 2008. By law, the employee should have been removed from office after a two-month period. However, the parties agreed to early termination of the employment contract. As a result, the specialist was fired on March 12, 2008.

The amount of accrued wages for the previous 12 months (from March 1, 2007 to February 29, 2008) amounted to 215,000 rubles.

The number of actually worked days for this period is 226.

Average daily earnings - 951.33 rubles. (215,000 rubles : 226 days).

Severance pay is due to him in the amount of the average monthly earnings for the period from March 13, 2008 to April 12, 2008, i.е. in 22 business days.

The amount of the severance pay is 20,929.26 rubles. (951.33 rubles × 22 days).

Additional compensation (for early dismissal) is paid for the period from March 13 to March 30, 2008, i.е. for 12 working days, and amounts to 11,415.96 rubles. (951.33 rubles × 12 days).

Saved earnings from April 13 to May 12, 2008 - 18,075.27 rubles. (951.33 rubles × 19 days) Payment is made at the end of the month upon presentation of a work book.

The calculation can be made from March 13 to May 12, 2008, i.е. for 41 days minus severance pay. The result is the same: (951.33 rubles × 41 days = 20,929.26 rubles).

Saved earnings from May 13 to May 24, 2008 (the employee applied to the employment service within two weeks) - 8,561.97 rubles. (951.33 rubles × 9 days) is paid at the end of the month upon submission of a work book and a certificate from the employment service.

As a result, the employee will receive 58,982.46 rubles.

Additional payments

Like any other employee who leaves the company (regardless of the grounds for dismissal), the final payroll must be carried out with the laid-off employee and compensate for unused vacation.

The calculation of compensation for unused vacation is carried out in accordance with Article 127 of the Labor Code and paragraphs 10-12 of the Regulations 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 No. 922. In this case, the same rules apply as with calculation of vacation pay (Article 139 of the Labor Code of the Russian Federation, Federal Law of December 29, 2006 No. 255-FZ).

Accounting

Based on paragraph 5 of PBU 10/99 "Expenses of the organization", approved by order of the Ministry of Finance dated 06.05.1999 No. 33n, the costs of paying compensation in connection with the dismissal of an employee when reducing the number or staff of the organization in accounting are recognized as expenses for ordinary activities. At the same time, such costs are recognized in accounting, regardless of the intention to receive revenue, other or other income (paragraph 17 of PBU 10/99).

In accordance with paragraph 18 of PBU 10/99, severance benefits are reflected as expenses in the reporting period in which they are accrued, regardless of the time of actual payment of funds.

Instructions for using the Chart of Accounts accounting financial and economic activities of organizations, approved by order of the Ministry of Finance dated October 31, 2000 No. 94n, to summarize information on settlements with employees of the company for all types of remuneration, bonuses, benefits and other payments, account 70 “Settlements with personnel for wages” is intended.

Compensation is reflected in the credit of account 70 in correspondence with the debit of cost accounting accounts, for example, 20 “Main production”.

In a crisis, businesses are looking for various ways optimization of activities.

In few places the administration thinks about the intensification of production processes, introduces new technologies in work. It is much easier to reduce costs by reducing people.

The reduction is carried out in strict accordance with the Labor Code of the Russian Federation, and in this case, the employee is entitled to a number of payments.

Management often tries to take advantage of the citizen's ignorance and save on severance payments. How to get what is due, to resist arbitrariness, we will consider below.

What is staff reduction, what articles of the Labor Code regulate it

The essence of the reduction is to reduce the number of employees / employees of the enterprise.

The process is underway according to three schemes:

The legal relations of a modern enterprise between employees and the employer are built in a contractual manner. Legally, the reduction implies the termination of the employment contract / agreement initiated by the management of the enterprise - paragraph 2 of article 81 of the Labor Code of the Russian Federation. Also, all aspects of optimizing the staff are provided for by Articles 178-180, related provisions of the law.

Reasons for this procedure

The loss of a job often results in litigation between the parties. The claims of the dismissed people also concern unjustified dismissal.

In this regard, the Constitutional Court of the Russian Federation issued a ruling dated December 18, 2007, which freed employers to justify the expediency of reductions. Any employer is free to decide at its own discretion to reduce the number of workers, if it considers such a step economically justified.

Not regulated, but often occurring in practice, grounds for reduction staff/numbers serve:

• changes in the organizational and legal structure of the organization;
• deterioration of the economic situation of the enterprise;
• changes in the standards of the employer to the professional qualifications of workers.

When considering claims, the courts decide on the legality of the procedure and procedure for awarding payments, without making judgments about the need for optimization.

However, in exceptional cases, the employer is forced to justify his decision with documentary evidence. For example, in confirmation of the reality of the reduction in the reorganized enterprise, the court may request a new staffing table.

The loss of a job entails an inevitable deterioration financial situation. That's why the law introduced restrictions to apply such a step to socially vulnerable workers.

Employer has no right to cut:

1. raising children up to 14 years of age. If, however, a single mother can continue to work until the dependent reaches the age of majority.
2. If a parent is deprived of the rights to raise, the person replacing her, a single father, falls under the protection of the law.
3. All women raising children under the age of three.
4. The sole breadwinner in a family with a disabled child under 18 years of age.
5. Women in .
6. Workers who have received an industrial injury and mutilation at this enterprise.
7. Disabled due to military trauma.
8. Employees who are on vacation or in treatment for temporary disability.

If large-scale optimization is planned, when there are several applicants for the positions to be left, Article 179 of the Labor Code on the preferential procedure for maintaining jobs comes into force.

A priority receive:

1. High performance workers.
2. Professionals of the highest category.

If the employees are of equal value, then they are considered family and social status. The advantage is guaranteed:

• family employees with two or more dependents;
• persons - the only able-bodied in the family;
• employees who have received occupational diseases during the period of work;
• undergoing qualification retraining in the direction of the employer without interrupting the production process.

When reducing personnel to 18 years of age, the employer must obtain permission from the state labor inspectorate and guardianship authorities (Article 161 of the Labor Code).

Workers' rights

The law does not allow layoffs without warning. The employer is obliged to warn candidates about an unpleasant event 2 months in advance in writing.

Starting from 2016, in the notice to the employer suggests ways to avoid contraction: for example, work on a reduced schedule. For seasonal workers, labor legislation provides for a different notice period - 7 days (Article 296 of the Labor Code).

At the same time, at least formally, the person being reduced should have a choice: the employer offers employees alternative employment options (Article 180 of the Labor Code). At the same time, the vacancy must correspond to the qualifications of the employee, but the level of payment may be lower.

If mass optimization is expected, the administration of the enterprise should notify the employment service, and if there is a trade union association, coordinate all aspects of optimization with representatives of labor interests.

List of payments

The Labor Code established a number of payments for laid-off workers.

Dismissed citizen laid:

1. Salary for the last month or proportional to the period worked before dismissal (Article 140 of the Labor Code);
2. Compensation for unused vacation;
3. Severance pay in the amount of average monthly earnings;
4. Financial support within two months from the date of dismissal in the amount of average earnings.

Important register with the employment office no later than 14 days after the “parting” with the enterprise, since, according to the decision of the Center for Social Protection, the payment period “according to the average” can be extended by another month if the social service could not find a job for an unemployed person in two weeks.

The labor exchange will go to extend the payment for forced rest, even if a person is late with registration. However, the reasons must be force majeure. Usually - illness or caring for a seriously ill family member.

But if a specialist finds a new job before the expiration of a 2-month period, the payment will go according to the actual non-working period.

The procedure for calculating severance pay

Article 139 of the Labor Code and government decree 922 of December 2007 regulate the procedure for calculating payments.

According to their norms, the period for calculating the "average" is taken as 12 months preceding the date of reduction.

The calculation includes:

1. Cash rewards, bonuses, bonus payments. In one month, only one of the total amount of additional payments is taken into account. But there is nothing illegal if unaccounted bonuses are included in the months without surcharges.
2. Bonuses for length of service, length of service, qualifications, bonus based on the results of work for the year (13th salary);
3. Other payments included in the monthly salary.

It is worth remembering that the earnings ratio used for severance payments should not be lower than the federal one on the date of dismissal.

In calculation not included:

1. Temporary disability due to illness, being on social leave - for example, a decree;
2. When an employee was absent from work for independent reasons: business trips, internships, training during working hours;
3. Strikes and forced downtime of the enterprise, when the employee was unable to work;
4. Time provided officially by the employer for feeding baby or caring for a disabled child.

When a person who has been laid off has worked for the company for less than a year, the full period of work is taken into account. If you had a chance to work for a very short time, less than a month, the severance pay is calculated based on the tariff rate, salary according to the position, and other payment standards established by the position.

Early layoff at the initiative of the employee

The legislator provides the possibility of early termination of the contract in connection with the upcoming reduction. It is carried out only with the written consent of the candidate for reduction.

Benefits of this step:

• there is a significant margin of time for advanced training, mastering a new profession and finding a job;
• a person receives an additional allowance-compensation in addition to standard payments.

Example. Accrual is based on average earnings in proportion to the time remaining until dismissal. Suppose a person receives a warning about staff changes planned at the enterprise in 60 days. After thinking about it for a week, the employee applies for an early reduction. Compensation will be credited for 53 days not worked.

Holiday compensation

Order compensation for unused vacation defined by article 127 of the Labor Code. The amount of the payment depends on the duration of the planned vacation. In this case, compensation for the time spent on vacation is not charged. For example, a person, before the reduction, “walked off” part of the time, dividing vacation period into two parts. Here he will be paid only the remaining time.

According to Article 81 of the Labor Code, if the employee who has been reduced has worked for more than 5 months in the current year, vacation pay is calculated in full. In other cases, compensation will be calculated according to the hours worked after the fact.

Order of registration and receipt

By and large, the accrual of “compensation” is the concern of the enterprise. In particular, the "cadres" prepare the documentary basis, the accounting department calculates everything due.

One-time payments are transferred on the last day of employment.

The severance pay is calculated by the former employer at the end of the billing period of the first, second and third months of accounting in the CZN. Need to provide work book without another employment record.

For information on what payments are due to employees when laying off staff, see the following video:

If an employee at the time of dismissal due to the liquidation of an enterprise or a reduction in staff worked in the company for more than a year and five and a half months, but did not use the right to leave for the second working year, then he is entitled to full compensation for unused vacation, that is, for all 28 calendar days. days. The relevant recommendations of Rostrud are contained in Minutes No. 2 dated June 19, 2014 (approved at a meeting of the working group on informing and consulting employees and employers).

Essence of the question

As a general rule, upon dismissal, an employee is paid compensation for all unused vacations (Article 127 of the Labor Code of the Russian Federation). Leave to be replaced by monetary compensation upon dismissal of an employee is calculated on the basis that full leave is due to an employee who has worked a full year. It consists of 12 full months and is calculated from the day the employee enters work for a specific employer. For example, if an employee was hired on July 1, 2013, then leave is granted to him for the working year from July 1, 2013 to June 30, 2014.

The procedure for calculating compensation for unused vacation is established by the Rules on regular and additional vacations approved by the USSR Tax Code of April 30, 1930 No. 169 (hereinafter referred to as the Rules). Although this document was adopted more than 70 years ago, it is still used (to the extent that it does not contradict the current legislation).

Former position of Rostrud

Earlier, Rostrud explained: paragraph 28, which provides for the payment of full compensation upon dismissal of an employee in connection with the liquidation, who has worked from 5.5 to 11 months a year, applies only if the employee has worked in this organization for less than a year. And compensation for the second working year is paid exclusively in proportion to the hours worked (see letters from Rostrud dated 03/04/13 No. 164-6-1, dated 08/09/11 No. 2368-6-1). This means that an employee with 5.5 months of experience in a liquidated company is entitled to receive full compensation, and an employee with 1 year and 5.5 months of experience is paid a smaller amount (in proportion to the hours worked).

The new position of the department

Now Rostrud specialists have changed their position. The rationale is this. Clause 1 of the Rules stipulates: each employee who has worked with this employer for at least 5.5 months has the right to receive another vacation. The next vacation is granted once a working year. The right to the next regular leave on account of the new working year arises for the employee after 5.5 months from the end of the previous working year. Thus, the right to leave is related to the working year of the employee.

Consequently, when dismissed due to liquidation or reduction of staff, we are talking about the period (working year) for which leave is granted, and not about the total duration of work with this employer. That is, full compensation upon dismissal due to the liquidation of an enterprise or a reduction in staff is due to employees who have worked from 5.5 to 11 months in a working year. Accordingly, an employee who has worked in the organization for more than one year and 5.5 months and is dismissed due to staff reduction is entitled to receive full compensation for unused vacation for the last working year. A different interpretation of this norm would mean an unequal position for employees who have worked in the organization for less than a year and who work for a longer period, experts from Rostrud noted.

Retrenchment is a situation from which no one is immune. If the relationship between the employee and the employer is officially registered, the procedure is carried out in accordance with the norms of labor legislation, and the dismissed person is entitled to the issuance of special payments upon reduction.

Downsizing payments

In case of forced dismissal, the law protects the rights of a citizen. Firstly, employees need to be notified about the upcoming event 2 months in advance so that they have time to look for a new job. Secondly, the employer is obliged to provide material assistance in the form of certain payments.

Salary and holiday pay

The first thing that is charged to a dismissed person is payment for the hours actually worked, which he did not receive. In some cases, bonuses are issued if this is fixed by local documentation.

If an employee fails to exercise the right to annual leave, basedArt. 127 Labor Code of the Russian Federation. The total amount depends on:

• from the duration of the vacation period;
• the time elapsed since the last vacation;
• wages.

IMPORTANT! Compensation for unused vacation is accrued as for a whole year, if in the year of reduction the citizen worked from 5.5 to 11 months. Regulation is regulated by the recommendation of the Federal Employment and Labor Service dated April 19, 2014.

Both payments will be taxed at 13%.

severance pay

Such financial support is not always provided. Benefit is paid only in cases specified in paragraphs 1 and 2 of Art. 81 of the Labor Code of the Russian Federation.

Its size according to Art. 178 Labor Code of the Russian Federation, corresponds to the average monthly salary, but not lower than the minimum wage. And according to Clause 2 of Art. 217 Tax Code of the Russian Federation 13% exempt. If the employee has not worked in the organization for one year, the amount due is determined taking into account the days actually worked.

IMPORTANT! The employer must pay this compensation to the citizen, even if he has a new job.

Second and third month

Payments for the reduction of an employee in these periods are accrued if he registered for unemployment within two weeks after the termination of the employment contract and, for objective reasons, did not find a job. Compensation is made at the expense of the employer in the amount of the average salary or the established salary.

An employee on a personal initiative is not entitled to claim a third reduction allowance. This can only be done by the Employment Service and only for persons registered with it. The payment for the third month of absence from employment is the last one.

Calculation procedure

The severance pay is calculated in two stages. At the first, the average earnings (Avg) are determined. Art.139 of the Labor Code of the Russian Federation calculation algorithm is set:

Srz =Vrp / Nfact, where:

Vrp- the employee's income for the billing period.

Nfact- actually worked shifts of the employee.

The billing period is 12 months preceding the month of reduction. For example, the dismissal occurred in February 2018, then the time interval from 02/01/2017 to 01/31/2018 will be taken for calculation.

The indicators do not take into account the time spent on vacation or sick leave, as well as their payment.

The second stage - the amount of the severance pay due to the issue is considered.

pout=Srz * Nworking shifts, where

Nworking shifts- the number of working days in 1-3 months after dismissal.

REFERENCE! Wages for an incomplete month are calculated in proportion to the days worked.

Example:

Petrov N.A. worked for the company for 2 years. By official order, it was reduced from 01/01/2017. On January 9, he registered with the employment service. As of April 1, 2017, Petrov remains unemployed.

He worked a standard five-day work week. According to the production calendar for 2016, the number of labor shifts is 247, of which he was on vacation from 01.07 to 28.07. Monthly earnings were constant and amounted to 30,000 rubles.

The procedure for calculating severance pay upon dismissal due to staff reduction:

Actually worked shifts in 2016: 247 - 19 = 228 Srz for the period from 01/01/2016 to 12/31/2016: = 331428.57 / 228 = 1453.63 rubles. January 2017 total: 1453.63 * 17 = 24711.71 February: 1453.63 * 18 = 26165.34 March: 1453.63 * 22 = 31979.86

Severance payment for January is due to Petrov even in the case of employment. If he found a new job in February or March, the compensation would be calculated in proportion to the days of unemployment.

For individual categories

Depending on the nature and conditions of work, the amount of compensation varies. Some categories of employees often face the fact that they are denied severance pay when they make redundancies. However, the provisions of the Labor Code of the Russian Federation stand up to protect their interests.

Pensioners

A person receiving a pension is fired on the same terms as an ordinary employee. Retired status, position, skill level, seniority and age do not affect the amount of severance pay upon reduction.

The issue of issuing a third benefit to a pensioner is controversial. On the one hand, it is provided on a general basis. On the other hand, a pensioner is considered a socially protected person and cannot be called unemployed. If there are weighty facts, the employment center may issue a certificate, on the basis of which the third payment will be made.

part-time workers

Severance pay upon dismissal is paid in the same manner as for key employees. However, the preservation of the average monthly earnings in the second and third months is no longer provided.

If an employee working in combination quits his main job before the time of reduction, which is confirmed by an entry in the work book, he has the right to receive payment for these months.

Seasonal worker

A seasonal worker is informed of a planned dismissal 7 days in advance. Severance pay in case of reduction is paid according to Art. 296 of the Labor Code of the Russian Federation in the amount of the average wage for two weeks. Other types of material assistance in this category are not provided.

Residents of the Far North and areas equated to them

Northerners apply for benefits with a reduction in 4-6 months at the request of specialists from the employment service, if they applied there within 30 days after the dismissal.

Additional compensation

The severance pay is not the only financial help for employees due to downsizing. Depending on the situation, additional material support is assigned.

For early termination

Employees are warned about layoffs two months in advance, but sometimes it is required to terminate the employment relationship ahead of schedule. The Code provides for the dismissal to reduce staff ahead of time, but only by agreement of the parties and with the accrual of a compensation payment.

Its purpose is to compensate for lost income for the period in which the employee could continue working. The size directly depends on the number of days between the dates of early and official termination of employment. The contract or other documentation of the organization may establish multiplying factors.

Early reduction has advantages. First, the dismissed employee receives additional compensation. Secondly, the period for finding a new job is increasing.

Payment of the 13th salary in case of reduction

In many organizations, at the end of the year, a special type of bonus is provided - the 13th salary. If the provision on it is officially established, when the employee is reduced, she is also issued. It does not matter in which month the dismissal occurred. A prerequisite is at least one year of work experience in the workplace.

sick pay

The reduced employee is entitled to. Basic conditions:

• the citizen fell ill before the official day of dismissal. The amount of the payment depends on the length of service and the average salary;
• sick leave received within 30 days after the reduction. The allowance is equal to 60% of the average wage for the last two years. If a citizen is registered with the employment service, it is equivalent to unemployment benefits.
• sick leave issued to a pregnant woman officially recognized as unemployed within a year after dismissal.

REFERENCE! Payment of a sick leave is not a basis for refusing to issue other payments for dismissal due to redundancy.

Early retirement

Based Art. 32 RF Law “On Employment in Russian Federation» from 19.04.1991, a citizen has the right to apply for an early retirement pension subject to the following conditions:

• Insurance (work experience) of at least 25 years for men and 20 years for women.
• The age of the employee who fell under the reduction is less than the established retirement age by 2 years. The rule also applies to citizens who are entitled to a preferential pension.
• Justified lack of employment opportunities for a new job. Confirmed by the employment center.

Early pension is assigned only with the consent of the citizen and is paid out of budget funds. Upon employment or official retirement, payments stop.

How to get paid

A reduction in staff carried out in accordance with all the rules is a guarantee of receiving severance pay. The employee is advised to carefully study all the documents that he signs and familiarize himself with the labor legislation in order to prevent violation of his rights.

Decor

The accounting department of the employer is responsible for the registration and calculation of compensation for reductions and other charges. The allowance is paid on the basis of an order, which indicates its amount and the reason for dismissal. An appropriate entry is made in the work book with reference to article of the Labor Code of the Russian Federation.

Where are they paid

All due payments on dismissal in connection with the reduction of the staff of employees is carried out by the former employer. However, in order to receive benefits for the third month, a citizen must contact the employment center and take a certificate confirming the lack of work. The document is submitted to the accounting department, and only after that compensation is calculated for the third month.

REFERENCE! Payment for sick leave after reduction is carried out by the Social Insurance Fund.

Pregnant women receive maternity benefits through the employment center in accordance with Order of the Ministry of Health and Social Development dated December 23, 2009 No. 1012n.

What are the timeframes for the calculation?

On the last work shift (day of dismissal ), according to Art. 140 of the Labor Code of the Russian Federation, pay: salary with vacation pay and the first allowance. If the employee did not work on that day, payment is made after receiving the request for calculation no later than the next day.

IMPORTANT! If on the day of reduction the employee is absent without a justified reason, the employer has the right to revise the terms of the reduction.

The terms of payment of the second and third severance pay in case of reduction are agreed upon by both parties.

Liability for non-payment

Delay in the issuance of compensation or incorrect accrual (less than prescribed) is considered as a failure to comply with labor law. In this case, the employee must adhere to the following action plan:

1. Provide against signature a written claim about the violation of their legal rights to the head and to the trade union of the organization.
2. Write a complaint to Labor Inspectorate on the inaction of the boss or violation of the deadlines for fixing the problem.
3. Contact the prosecutor's office with a request to check the legality of the actions of the employer.
4. File a claim with the arbitration court if other instances refuse to consider the case or problems are not found.

If any violations are detected, the employer can be held liable. under Art. 236 of the Labor Code of the Russian Federation.

Severance pay for downsizing - material support for involuntary unemployment. The receipt and procedure for payments are established by labor standards in force in Russia. Along with the mandatory financial assistance, the employee receives cash for hours worked. At the request of the employer, additional compensation is assigned.

In the current unstable economic situation in the country, there are quite often cases when both small and fairly large companies are forced to say goodbye to some of their employees, resorting to staff reductions.
When carrying out such a difficult procedure, it is very important to observe all the subtleties of dismissal on this basis, as well as to make the final settlement with the dismissed employees.

Order of procedure

The dismissal of an employee on the basis of a reduction in the number of staff is a legal procedure for optimizing the number of employees in a particular enterprise. Despite the fact that all provisions regarding this kind of procedure are spelled out in legislative acts, this is perhaps one of the most “problematic” grounds for terminating a contract that employers face.

Stages

There are four main stages that every firm or organization goes through that has decided on the need to optimize jobs:

1. preparation of the text and publication of the local order of the employer on the need for reduction;
2. notification of employees to be reduced about the upcoming reorganization and the offer of another job within the enterprise;
3. sending a notice to the trade union organization, as well as to the local employment service;
4. registration of official dismissal of employees.

Issuing an order

In the event that the employer has decided on the need, he is obliged to issue an appropriate order.

There is no specific form for issuing such a document, but there are mandatory details that must be present in the text.

In addition to the date of issue of the order, the person who prepared it, the serial number, registration number and a number of other data, a certain date must be present when the dismissal will take place, as well as specific changes in the enterprise, in accordance with which the reduction takes place. The date indicated as day "X" will determine the period in which persons subject to reduction must be notified.

Employee notification

To notify employees that they are subject to redundancy, it is mandatory to meet the deadline provided for the employee in connection with the need to find a new job. If you are wondering how many months in advance you must be notified that you are being laid off, then each employee should already know for sure that it is he who is subject to reduction, no later than two months before the day of dismissal.

Such notice must be given to the employee in writing and handed over against signature.

In the same notification, the employer is obliged to indicate all the positions available at the enterprise that he can offer to a particular employee (according to Article 180 of the Labor Code of the Russian Federation). When the employee receives such a notice, he signs for it, and also notifies the employer of whether he is ready to take one of the proposed positions. During the entire time that remains until the day of dismissal, the employer is obliged to inform the persons subject to the reduction of new or vacant jobs that these employees may apply for.

Trade Union Notice

For quite a long time, the question of how long before the day of dismissal it is necessary to notify the trade union and the employment service remained controversial. On January 15, 2008, the Constitutional Court of the Russian Federation issued a ruling under the serial number 201, in which a bullet was put on this dispute. Since then, it has been recognized that notice to the trade union must be sent no later than two months before the day of dismissal.

In the event that a large-scale dismissal of a large number of employees due to a reduction is coming at an enterprise, the notification must be sent no later than three months in advance.

The same terms are provided for the employment service.

Decor

The final stage of the entire procedure is the issuance of an order in the form of T-8 on the dismissal of an employee due to a reduction in the number of staff. If the employee has expressed a desire to be dismissed before the specified period, then an appropriate note is made about this. Each dismissed employee must be familiarized with this order against signature. Do not forget about the correct execution of the work book, which must be returned to the employee after the dismissal.

It is imperative that the grounds for dismissal contain a reference to paragraph 2 of paragraph 1 of part 81 of the article of the Labor Code of the Russian Federation.

Do not forget that all employees who leave the enterprise due to staff reduction must be paid severance pay.

Calculation for downsizing

The Labor Code of the Russian Federation guarantees to each employee subject to reduction certain payments in connection with the upcoming loss of work. At the same time, the employer, under no circumstances, can refuse such compensation if it was the reduction that served as the basis for dismissal. For those who do not yet know what payments are due to him during the reduction, it is worth reading the article below.

What payments are due in 2019

It does not matter for cash payments: there is a dissolution of the entire staff or the dismissal of only a part of the employees. Each employee must receive:

• The full amount of the salary, in proportion to the hours worked.
• Cash compensation for unused vacation time by the employee.
• (its amount will be equal to one average monthly earnings).
• For the next two months after the official day of dismissal, the employee must receive his average monthly salary until he gets a new job (severance pay is counted in the total amount of these payments). If there is an official decision of the employment service of a particular locality, then the compensation period on this basis can be extended for another month. A decision of this kind is made on the basis of a written request from the dismissed employee within two weeks from the date of dismissal.

In the Russian Federation, for some special regions and localities, some changes are provided in the procedure and conditions for compensation upon reduction. So, according to article 318 of the Labor Code of the Russian Federation for workers in the Far North and areas equated to them in status, the average monthly wage after dismissal is kept for three months.

How payments are made

The entire procedure for dismissal and payments in connection with it is strictly regulated by the Labor Code of the Russian Federation, namely its 84.1 article. Based on the provisions enshrined there, a full settlement with the employee must occur on the day of official dismissal.

Based on Article 140 of the Labor Code of the Russian Federation, if an employee was absent from the workplace on his last day, then a full settlement with him is made the next day after his official application for payments.

With regard to benefits paid after dismissal, the first of them must be paid on the day of dismissal, but the second - after a month after the date of the first payment. At the same time, the former employer has the right to demand that the employee's work book be provided for review in order to make sure that the person has not yet found an official job.

If a person was employed in the second month, then compensation from the former employer should occur in proportion to the days that the person was considered unemployed. Do not lose sight of the fact that no tax deductions are made on the amount of severance pay.

Persons of retirement age and part-time workers

Quite often at the enterprises there is a reduction of people from among pensioners. In this case, there are no exceptions to the rules: the calculation must be made in full on a general basis. Also, such a dismissed person is also entitled to compensation for the second month without work in the event that he did not find a job earlier.

The only difference between pensioners and other categories of citizens is the impossibility of registering with the social service as an unemployed person, since officially such a person receives a pension.

The possibility of dismissal due to the reduction of a person who is. There is no uniform solution regarding how severance pay is paid to part-time workers, but the majority is inclined to believe that it is not worth paying compensation payments related to the unemployment of such a person, since the dismissed worker has the main income from another job.

The only case when such payments are expected is the loss of the main job by the day when the person is officially recognized as dismissed from the second job, where he was a part-time job. As for the severance pay, it must be paid on a mandatory basis on the general rules.

Seasonal employees

According to the current provision of Article 296 of the Labor Code of the Russian Federation, a seasonal worker, upon reduction, has the right to expect to receive a severance pay.

Its size is equal to the two-week average earnings of a particular employee.

In this case, the employer does not need to pay at all monetary compensation on the occasion of unemployment during the next few months after the dismissal.

How to calculate the amount due as severance pay

Of course, you need to trust the data provided by the accountant, but no one has canceled the human error. Therefore, it would be best to independently double-check the amount due for payment. There is nothing difficult in this.

The general formula by which we will calculate is as follows:

Severance pay amount = average earnings of a particular person for one day (shift) * number of days (from the second day after the date of dismissal).

Suppose that a certain citizen named N. received a salary in the amount 30 000 rubles during the past twelve months until the day of dismissal, which fell on 5 March 2019. At the same time, for last year he worked 220 calendar days.

Thus, over the past year, N. received: 30,000 * 12 = 360,000 rubles.

On the day of his earnings was: 360,000 / 220 = 1,636.36 rubles.

The settlement period taken into account for citizen N. is from March 1, 2019 to February 28, 2019.

The month following the dismissal is April. The number of days that the employee was supposed to work was 22. Therefore, the employer is obliged to compensate N. for the average earnings for this month.

The sum will be: 22 * ​​1,636, 36 = 35,999.92 rubles.

Exceptions to the calculation

The ideal option for calculating severance pay is described a little higher - the employee was at the workplace all the time. In practice, this does not happen often: sick leave, simple, exit to your account, holidays, etc.

Each person should be aware of the fact that periods during which the employee was absent from the workplace cannot be taken into account:

• time of illness on sick leave;
• absence from work due to equipment downtime or other reasons due to the fault of the employer;
• days counted as days off, due to the employee for the care of disabled or disabled children;
• labor holidays, time taken by the employee at his own expense, business trip days, as well as other similar reasons for which the employee was absent;
• strike (provided that the employee did not participate in it).

It is not enough to wait for accruals when making a calculation in the event of a staff reduction. It is important in the current situation to know your rights and be able to defend them. . Often in practice there are situations when the employer does everything possible to avoid dismissal precisely on the basis of reduction: he asks to write an application for own will, threatens, looks for any reasons for other reasons to terminate the employment contract. Under no circumstances should this situation be left unattended. If you think that your rights have been violated or there is a threat of their violation, immediately contact the appropriate authorities (Labor Inspectorate, court, prosecutor's office, etc.) for restoration and protection.