Termination employment contract terminates cooperation between the employee and the enterprise. If this action is related to the liquidation of an enterprise (organization) or a reduction in the number of staff, then the employee has the right to payment of compensation and provision of other work at the same enterprise. The Labor Code of the Russian Federation provides for the payment of severance pay, and in some cases the payment of additional compensation, upon termination of an employment contract with an employee due to staff reduction or liquidation of an enterprise.
Preferential right to remain at work (Article 179 of the Labor Code of the Russian Federation).
The main criteria for remaining at work are higher qualifications and labor productivity. This condition is aimed at maintaining labor relations with highly qualified workers. Labor productivity is characterized by the absence of defects, the quality of the work performed, large volumes of products produced, etc. The level of qualifications is determined based on whether the employee has primary, secondary or higher vocational education, having a second education, academic title or degree, etc.
The level of qualifications and labor productivity of workers may be equal; in such cases, it is legislatively established who the employer should give preference to (Article 179 of the Labor Code of the Russian Federation).
Employees who have a priority right to remain in their positions in the event of a reduction in staff or number of employees:
- disabled people of the Second World War;
- persons in whose family there are no other workers with independent income;
- undergoing advanced training in the direction of the employer;
- family (having two or more dependents);
- received an occupational disease or work injury while working at this enterprise;
- disabled combatants in defense of the Fatherland.
The employer has the right to retain any of the above-mentioned workers at the enterprise, regardless of their location on the list established in the Labor Code of the Russian Federation.
Liquidation of an enterprise (organization), reduction of staff or number of employees - guarantees and compensation (Article 180 of the Labor Code of the Russian Federation).
The employer is obliged to offer the employee another vacant position when carrying out measures to reduce staff or the number of employees. The proposed job must be located in the same enterprise and correspond to the qualifications of the employee. The employee must be offered all vacancies that correspond to his qualifications or work for an absent employee who is on long-term treatment, on a business trip, parental leave, etc. The compliance of the proposed job with the employee's qualifications is determined based on the qualification category - for blue-collar occupations and the level of education - for employees.
The employer, when offering another job, must indicate job responsibilities employee and wages. The employer is obliged to offer vacancies to an employee with whom the employment contract is terminated not only on the day of notification of the layoff, but also during the period that remains before the layoff. Failure to comply with this condition indicates the employer’s dishonest fulfillment of the duties assigned to him for the employment of the laid-off employee.
Each employee subject to layoff must be notified in writing about this at least two months before the proposed dismissal.
The employee must sign the notice of layoff with his own hand; if the employee refuses to sign the notice, the employer draws up a corresponding act. The countdown to the reduction begins on the day following the day of notification. According to current legislation, the notice must contain the exact date release.
The employer has the right to terminate the employment contract with the employee before the expiration of the period specified in the notice. In this case, the employee is paid compensation in the amount of average earnings, calculated in proportion to the time remaining before dismissal. Termination of an employment contract early at the initiative of the employee is unlawful.
Termination of an employment contract with the chief accountant, deputy manager and manager when the owner of the organization's property changes - guarantees (Article 181 of the Labor Code of the Russian Federation).
When terminating the employment contract with the chief accountant, the head of the organization and his deputy, the new owner is obliged to pay compensation to these persons. The amount of such compensation cannot be less than 3 times the employee’s average earnings.
The new owner has the right to terminate employment contracts with the above-mentioned employees for three months from the moment he acquires the right to the property of the enterprise (organization) (Article 75 of the Labor Code of the Russian Federation).
Securing guarantees and compensation for termination of employment contracts is aimed at providing assistance to persons losing their jobs and wages. When an organization is liquidated, its staff or number of employees is reduced, the assistance of a labor lawyer is support for those being laid off, a guarantee of compliance with the legality of the reduction and payment of all appropriate benefits.
- change of essential terms of the employment contract
Sincerely,
Victoria Demidova, lawyer.
In this article I will tell you about the termination of an employment contract during the liquidation of an organization.
Termination of an employment contract upon liquidation of an organization or termination of the activities of an individual entrepreneur is provided for in paragraph 1 of part 1 of Article 81 of the Labor Code of the Russian Federation. In this case, not just one, but all employees have to be fired.
Liquidation of an enterprise is the cessation of its activities as legal entity without transfer of powers (rights and obligations of the enterprise) by way of succession to any other persons. An enterprise may be liquidated by decision of a body authorized to do so in accordance with the constituent documents, or by a court decision.
The same applies to the termination of the activities of an individual entrepreneur.
Termination of an employment contract during liquidation occurs regardless of whether employees are at work or temporarily absent due to good reasons(due to illness, vacation, etc.). At the same time, the law provides guarantees and compensation for dismissed employees.
The basis for dismissal under clause 1 of part 1 of Article 81 of the Labor Code of the Russian Federation is the decision to liquidate the enterprise (termination of the activities of an individual entrepreneur), adopted in the manner prescribed by law by authorized bodies (persons).
Termination of an employment contract upon liquidation of an enterprise implies that the employee must be warned about this in accordance with Article 180 of the Labor Code of the Russian Federation.
Such a warning should:
- be personal in nature;
- brought to the attention of each employee in writing and against signature - no later than 2 months before the expected date of dismissal.
In practice, termination of an employment contract during liquidation provides for oral notification of the upcoming dismissal and at the same time it is explained to the employee that he has the right to resign before the expiration of the notice period with the simultaneous payment of additional compensation to him.
In this case, the amount of compensation is calculated in proportion to the time remaining before the expiration of the notice of dismissal. The employee must give written consent to this option of terminating the contract. This procedure for dismissal is called without notice.
The employer has the right to dismiss employees who have stated in writing their consent to the non-notice dismissal procedure before others. However, it should be borne in mind that before the relevant order is issued, an employee who has previously agreed to a no-notice dismissal procedure has the right to withdraw his application by notifying the employer in writing.
Employees who have not submitted the appropriate written statements must be sent warnings by the employer about the upcoming termination of the employment contract upon liquidation of the enterprise. If the employee refuses to sign (refuses to receive notification), a report is drawn up to this effect.
For certain categories of employees, the notice period for upcoming dismissal due to the liquidation of an enterprise may be reduced. For example, in accordance with Article 292 of the Labor Code of the Russian Federation, such a warning must be sent to an employee who has entered into an employment contract for a period of up to two months, no later than three days before the expected date of dismissal, and in relation to seasonal workers this period, according to Article 296 of the Labor Code of the Russian Federation, must be at least seven days.
Termination of an employment contract during liquidation (termination of the activities of an individual entrepreneur) is formalized by an order (instruction) on termination of the employment contract. The employee must be familiar with the order against signature. The order (instruction) is the basis for drawing up other necessary documents.
An employee dismissed under clause 1 of part 1 of Article 81 of the Labor Code of the Russian Federation is entitled to severance pay in the amount of average monthly earnings. This requirement is established by Article 178 of the Labor Code of the Russian Federation. In addition, he retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).
At the same time, employees who have entered into an employment contract for a period of up to two months are subject to dismissal without payment of severance pay, unless otherwise provided by the relevant federal laws, a collective agreement or an employment contract previously concluded with this employee. For seasonal workers, such benefits are paid in the amount of two weeks' average earnings.
If the activity of a branch, representative office or other separate division, the dismissal of its employees occurs according to the same rules as during the liquidation of an enterprise.
Termination of an employment contract upon liquidation of an enterprise
Liquidation of an enterprise means that the organization completely completes its activities and does not need human resources. This situation is a legal basis for termination of an employment contract at the request of the employer in accordance with the first paragraph of the article.
The dissolution of an organization is associated with serious legal consequences, in particular for the organization's personnel. In this case, releasing employees from duties involves providing them with guarantees and making payments approved by law.
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What payments and benefits are required by law, as well as what nuances there are associated with receiving them, you need to know in advance.
Main provisions
General procedure
With the termination of the organization’s activities, all concluded employment contracts and compensation payments to employees of the enterprise are terminated, including:
- wages with bonuses and allowances before immediate dismissal;
- for unused vacation periods;
- severance pay equal to average monthly earnings.
Notification of employees about the termination of employment contracts is carried out in in writing behind 60 days. You can terminate it before completion 2 months, but with the consent of the employee and with the payment of additional compensation established by law.
Disputes regarding payments that are due to a dismissed person in connection with the dissolution of the organization are resolved by payment of an undisputed amount of money by the employee on the day of termination of the contract. If within a thirty-day period after dismissal the employee does not find a new place of work and becomes temporarily disabled, he has the right to contact previous employer for benefits.
Dismissal due to liquidation of the organization presupposes the preservation of the monthly average wages, which is paid over a period not exceeding 60 days from the moment of termination of the employment contract.
Three months before the organization ceases to operate, the owner can send a notice to the trade union in accordance with the article of the Labor Code, which will contain data on the reason for termination of employment contracts, data on personnel and the timing of their dismissal. This clause is optional, since the consent of the trade union is not required.
Controversial situations in payments to employees during the liquidation of an enterprise
The first months of dismissal
First 30 days after dismissal, the owner of the organization pays the employee severance pay equal to the average monthly salary. The next month the payment is repeated if the fired person was unable to find a job. To confirm this fact, the employer is provided with a work book and a statement written in his name.
The third month after dismissal is also paid if the employee is not employed by the central employment center. The service issues a corresponding resolution, which must be provided along with the work book to the former employer.
To formalize the status of unemployed, a package of documents is sent to the labor exchange, including:
- passport;
- diploma of completion of studies at a university or college;
- employment history;
- salary certificate filled out in accordance with the TsZN form for the last quarter.
The employee comes to receive the payments required by law before the organization is excluded from the general register of legal entities. persons Payments to employees upon liquidation of an enterprise are made on the day of application or the next one, as well as when wages are paid.
Compensation
Dismissal in connection with the abolition of an organization is carried out at the will of the owner of the enterprise. This means that all staff will be laid off, regardless of whether they have additional security.
The following categories of employees are subject to dismissal:
- on vacation or temporarily disabled;
- those who went on maternity leave;
- raising children up to 3 years;
- single parents raising a child up to 14 years old or a child with a disability up to 18 years old;
- minor workers.
Employees dismissed at the initiative of the owner of the enterprise are paid compensation for unused vacation periods. The amount is calculated using a formula in which each day of vacation is multiplied by average earnings per day. According to the per year employee is provided 28 days paid leave.
When an employee has not worked a full working year, vacation compensation is calculated in accordance with the number of months worked by the employee. Cash payments for unused vacation are due only to those who have officially worked at least 5 months.
The owner of the organization has the right to round up the number of vacation days not used by the employee in favor of the latter.
Contributions for insurance against occupational diseases and accidents are not calculated from these payments. Personal income tax is withheld from compensation for unused vacation.
Benefits
Upon termination of the employment contract, the owner of the organization pays the employee the following amounts of money:
- Salary for performing duties until the moment of dismissal.
- Payment for unused vacation periods during work.
- Payment for early termination of an employment contract, which is equal to the average monthly salary. It is calculated in proportion to the number of days before the expiration of the warning period about the termination of the organization’s activities and the termination of the contract for this reason.
- Severance pay in the amount of average monthly earnings. It is also available to part-time workers.
- Payment in the amount average salary per month during the period of employment.
- Payment of salary in the average amount for the third month is carried out upon provision of a certificate from the Employment Center confirming the absence of official employment.
It is written that if benefits due to an employee are not paid on time, the owner of the enterprise pays them along with interest.
The interest rate is calculated using the Bank of Russia refinancing rate current for 2019.
Early payments
Labor Code strictly regulates the dismissal of employees in connection with the cessation of the enterprise’s activities, which requires timely warning of personnel about this situation.
If the process of terminating the employment contract is carried out earlier, the employee is paid additional compensation. Early termination of this document is possible only with the written consent of the employee, confirmed by his signature.
Calculation of compensation is carried out in proportion to the number of days before deadline notice of dismissal due to liquidation of the organization. Other cash payments are produced in the usual manner. Payments are made on the day of dismissal or the following day. If the employee was absent during the specified period, then the money is paid to him upon first request.
Paid leave includes compensation for early dismissal. Payments for them are carried out in accordance with the rules and insurance payments are not accrued on them. Additional compensation is not subject to personal income tax.
Guarantees of the law
(Tsypkina I. S.) (“Civilist”, 2011, No. 3)
TERMINATION OF AN EMPLOYMENT CONTRACT DURING LIQUIDATION OF AN ORGANIZATION: SOME PROBLEMS OF THEORY AND PRACTICE OF APPLICATION
I. S. TSYPKINA
Tsypkina Irina Sergeevna, candidate of legal sciences, associate professor, associate professor of the department labor law and social security rights of the Moscow State Law Academy named after. O. E. Kutafina.
In the context of the financial and economic crisis, problems associated with the social protection of workers are becoming more acute, in particular, when terminating an employment contract at the initiative of the employer in connection with the liquidation of the organization. In order to organize monitoring of the dismissal of workers in connection with the liquidation of organizations by the Ministry of Health and social development On November 28, 2008, Order No. 682 was adopted<1>, according to which the executive authorities of the subjects Russian Federation, exercising the delegated powers of the Russian Federation in the field of promoting employment, it is recommended to conduct weekly monitoring of the dismissal of workers in connection with the liquidation of organizations, and the Department of Employment and labor migration— conduct a weekly analysis of the state of the labor market, taking into account data from monitoring the dismissal of workers due to the liquidation of organizations or a reduction in the number or staff of workers, as well as underemployment of workers. In connection with the increase in the number of liquidated organizations, Order of the Ministry of Health and Social Development of Russia dated March 3, 2009 N 85n provides for the provision of monthly compensation payments unemployed women with children under three years of age, dismissed due to liquidation<2>. In the General Agreement between all-Russian associations of trade unions, all-Russian associations of employers and the Government of the Russian Federation for 2011 - 2013<3>indicated that modernization of the economy and innovative development must create demand for qualified workers, accompanied by the creation of effective jobs with high productivity and quality of labor, safe working conditions and decent wages. Thus, the problems associated with mass layoffs of workers in the context of the emergence of a market and competition do not go unnoticed by the state. At the same time, on January 12, 2011, at the 7th Congress of the FNRP, it was noted that the Russian economy cannot afford to preserve backward industries<4>. In this connection, it is obvious that in the future events will be carried out in Russia to liquidate organizations, covering hundreds and thousands of workers. But if under normal operating conditions market economy there were and are many practical issues related to the procedure for dismissing employees on this basis, then in present period they become especially relevant. ———————————<1>See: Order of the Ministry of Health and Social Development of the Russian Federation dated November 28, 2008 N 682 “On monitoring the dismissal of workers in connection with the liquidation of organizations or a reduction in the number or staff of workers, as well as underemployment of workers” // Bulletin of Labor and Social Legislation RF. 2009. N 2.<2>See: Order of the Ministry of Health and Social Development of the Russian Federation dated March 3, 2009 N 85n “On organizing work to provide monthly compensation payments to unemployed women with children under three years of age, dismissed due to the liquidation of the organization” // Russian newspaper. 2009. April 24<3>Russian newspaper. 2011. 11 Jan.<4>http://top. rbc. ru/society/12/01/2011/526497.shtml
As is known, the liquidation of a legal entity can be either voluntary or forced. It is carried out in the manner established by the Civil Code of the Russian Federation and special federal laws on individual legal entities. It should be noted that issues related to the procedure for filing claims to the arbitration court for the liquidation of organizations of the relevant state bodies and local governments, the adoption of decisions by the arbitration court are not summarized in a single normative legal act, in connection with which, in addition to the Civil Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation and other special laws, it is advisable to be guided by the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 13, 2000 No. 50 “Review of the practice of resolving disputes related to the liquidation of legal entities ( commercial organizations)» <5>. ——————————— <5>Bulletin of the Supreme Arbitration Court of the Russian Federation. 2000. N 3.
Despite all the difficulties that accompany the liquidation procedure of organizations in accordance with civil law, the Labor Code of the Russian Federation clearly approaches issues related to the termination of an employment contract in this case. Based on the relevant norms of the Labor Code of the Russian Federation, the following main provisions can be distinguished. Each employee is notified of the upcoming dismissal in connection with the liquidation of the organization personally and against signature at least two months before the dismissal (Part 2 of Article 180 of the Labor Code of the Russian Federation). An employee who has entered into an employment contract for a period of up to two months must be warned about the upcoming dismissal in connection with the liquidation of the organization three calendar days in advance, and an employee engaged in seasonal work must be notified in writing by the employer about the upcoming dismissal in connection with the liquidation of the organization. painting in no less than seven calendar days(Part 2 of Article 292 and Part 2 of Article 296 of the Labor Code of the Russian Federation). If there is a threat of mass layoffs, the employer, taking into account the opinion of the elected trade union body, takes the necessary measures provided for by the Labor Code of the Russian Federation (in particular, Part 5 of Article 74 of the Labor Code of the Russian Federation), other federal laws, a collective agreement, and an agreement. Criteria mass layoffs should be determined in sectoral and (or) territorial agreements. Upon termination of an employment contract due to the liquidation of an organization, the dismissed employee is paid severance pay in the amount of average monthly earnings, and he also retains the average monthly salary 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 salary is retained by the dismissed employee for the third month by decision of the employment service body if, within two weeks after the dismissal, the employee applied to this body and was not employed by it (parts 1 and 2 of Art. 178 Labor Code of the Russian Federation). The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the specified period, paying him additional compensation in the amount of the employee’s average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal period (Part 3 of Article 180 of the Labor Code of the Russian Federation). An employee who is dismissed from an organization located in the Far North and equivalent areas due to the liquidation of the organization is paid a severance pay in the amount of average monthly earnings, he also retains the average monthly salary for the period of employment, but not more than three months from the date of dismissal (including severance pay). In exceptional cases, the average monthly salary is retained by the specified employee during the fourth, fifth and sixth months from the date of dismissal by decision of the employment service body, provided that within a month after dismissal the employee applied to this body and was not employed by it (Article 318 Labor Code of the Russian Federation). When an employment contract with an employee engaged in seasonal work is terminated due to the liquidation of the organization, severance pay is paid in the amount of two weeks' average earnings (Part 3 of Article 296 of the Labor Code of the Russian Federation). For employees who are orphans left without parental care and released from organizations due to liquidation, the current legislation establishes additional guarantees. In this case, employers are obliged to provide, at their own expense, the necessary professional education these workers with their subsequent employment in this or another organization (Article 9 of the Federal Law of December 21, 1996 N 159-FZ “On additional guarantees for social support for orphans and children without parental care”<6>). ——————————— <6>NW RF. 1996. N 52. Art. 5880.
In accordance with paragraph 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 “On employment in the Russian Federation”<7>when making a decision on liquidation of an organization or termination of activities by an individual entrepreneur and possible termination of employment contracts between the employer and the organization no later than two months in advance, and the employer - individual entrepreneur no later than two weeks before the start of the relevant activities, they are required to notify the employment service authorities in writing, indicating the position, profession, specialty and qualification requirements to them, the conditions of remuneration for each specific employee. ———————————<7>NW RF. 1996. N 17. Art. 1915.
In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, the termination of employment contracts with employees of these structural units is carried out according to the rules provided for cases of liquidation of the organization. It follows from this that if a branch or representative office is located in the same area, then in this case the employees are subject to dismissal according to the rules of clause 1, part 1, art. 81 of the Labor Code of the Russian Federation (Part 4 of Article 81 of the Labor Code of the Russian Federation). Thus, labor legislation does not distinguish between forced and voluntary liquidation of an organization. There is a uniform procedure established by the Labor Code of the Russian Federation for all employees upon termination of an employment contract under clause 1, part 1, art. 81 of the Labor Code of the Russian Federation, with the exception of persons performing work for a period of up to two months, and seasonal workers. However, despite the apparent simplicity and clarity of the above norms, a number of controversial and ambiguously resolved issues in practice remain outside the scope of labor legislation related to the implementation of measures to terminate an employment contract with employees under clause 1, part 1, art. 81 Labor Code of the Russian Federation. The organization is considered liquidated from the moment the corresponding entry is made in the Unified State Register. Consequently, the date of dismissal of each employee must coincide with this date and be the same for everyone, which seems quite logical, because otherwise the grounds for terminating the employment contract under clause 1, part 1, art. 81 Labor Code of the Russian Federation no. This is basically the basis for the judicial practice of both the Supreme Court of the Russian Federation and district, regional and other courts. Thus, in the Determination of the Supreme Court of the Russian Federation dated July 11, 2008 N 10-В08-2<8>It is stated that recognition in the prescribed manner or declaring a person bankrupt does not mean the liquidation of the organization, but entails only the beginning of the liquidation process and, therefore, the termination of employment contracts with employees on this basis at the time the organization is declared bankrupt in this case should be considered unlawful. The same definition states that since the liquidation of the enterprise was not completed at the time of the plaintiff’s dismissal, there were no grounds for dismissal. The ruling of the St. Petersburg City Court overturned the decision of the Leninsky District Court of St. Petersburg to change the date of dismissal (case No. 2-1271/08 of August 11, 2008). By order of October 2, 2007 N 194-K, K. was dismissed from the post of director of the St. Petersburg State unitary enterprise. On this day, the defendant did not send the plaintiff an order of dismissal, and did not otherwise notify the plaintiff of his dismissal. The plaintiff was familiarized with the order of dismissal on May 4, 2008. On November 23, 2007, an entry was made into the Unified State Register of Legal Entities about the liquidation of the legal entity - the St. Petersburg State Unitary Motor Transport Enterprise. The panel of judges believes that the court’s conclusion to change the date of dismissal to the date of entering information into the Unified State Register of Legal Entities was made due to the incorrect application of the provisions of Art. Art. 234, 394 of the Labor Code of the Russian Federation, from which it follows that changing the date of dismissal is possible if the grounds or procedure for dismissal are contested. When reconsidering the case, the court should take into account the above, clarify the grounds for the claim, namely whether the plaintiff challenged the legality of the dismissal and whether there are grounds for making changes to the work book, provided for in Art. 394 Labor Code of the Russian Federation. The court should also take into account that the impossibility of continuing labor relations in connection with the liquidation of the organization does not in itself mean that the date of dismissal is set from the time the organization ceases to operate<9>. ——————————— <8>Bulletin of the Supreme Court of the Russian Federation. 2009. N 3.<9>SPS "ConsultantPlus".
By the decision of the Sverdlovsk District Court of Belgorod on May 13, 2010, it was recognized illegal dismissal K. from the Southern production division heating network» OJSC Belgorod Heating Network Company in connection with the liquidation of the organization, according to which persons dismissed from organizations under clause 1, part 1, art. 81 of the Labor Code of the Russian Federation changes the date of dismissal to the date of actual exclusion of the organization from the Unified State Register of Legal Entities<10>. ——————————— <10>SPS "ConsultantPlus".
There are quite a lot of violations of labor legislation in law enforcement practice, and the fact is that the Labor Code of the Russian Federation is actually limited to only three articles in relation to the considered grounds for termination of an employment contract, one of which indicates this very basis (Article 81 of the Labor Code of the Russian Federation), and two others - only the procedure for warning about upcoming dismissal and the procedure for paying severance pay are disclosed (Article 178 and Article 179 of the Labor Code of the Russian Federation). Civil legislation provides for other deadlines for the liquidation of organizations (which, apparently, cannot touch upon issues related to the procedure for dismissal of workers established by the Labor Code of the Russian Federation) - this, in particular, is the notification of the debtor’s employees about the upcoming dismissal no later than one month from the date of commencement of bankruptcy proceedings ( Article 129 of the Federal Law of October 26, 2002 N 127-FZ “On insolvency (bankruptcy)”<11>. In this case, the bankruptcy trustee must submit a report on his activities to the meeting of creditors at least once a month, which contains information about the number of dismissed employees of the debtor. The question arises: what grounds for terminating an employment contract in this case should be contained in their work book? In the same article, the term “redundant” employees is indicated in parentheses, but in this case we are talking about the liquidation of an organization, and not about reducing the number or staff of employees, which are completely different things. On the other hand, how can employees be fired if the employing organization has not yet been liquidated, and perhaps will not be liquidated, since it is not at all necessary that bankruptcy proceedings end with a decision to liquidate the legal entity. The arbitration court may adopt a judicial act refusing to declare the debtor bankrupt, a ruling on the introduction of financial rehabilitation or the introduction of external management, etc. Thus, no appeal government agency either a local government body, or creditors, or even the decision on bankruptcy proceedings itself does not provide grounds for terminating employment contracts under clause 1, part 1, art. 81 Labor Code of the Russian Federation. ———————————<11>NW RF. 2002. N 43. Art. 4190.
If we consider not forced liquidation, but the most general procedure established Civil Code to liquidate a legal entity, the moment of dismissal of employees must be linked to the period from the preparation of the interim balance sheet to the beginning of the preparation of the liquidation balance sheet. Payment of sums of money to creditors of a liquidated legal entity is made by the liquidation commission in accordance with the interim liquidation balance sheet, starting from the day of its approval, with the exception of creditors of the fifth priority, payments to whom are made after a month from the date of approval of the interim liquidation balance sheet. When declaring a legal entity bankrupt and determining the amount of claims for the payment of severance pay and wages for persons working or who worked under an employment contract, the outstanding debt accrued on the date the arbitration court accepted the application for declaring the debtor bankrupt, as well as interest for violation of the established the deadline for payment of wages, vacation pay, dismissal payments and other payments due to the employee in the amount and in the manner established in accordance with labor legislation (Article 136 of the Federal Law “On Insolvency (Bankruptcy)”). After the liquidation commission has paid all creditors, it, in accordance with clause 5 of Art. 63 of the Civil Code of the Russian Federation must draw up a liquidation balance sheet. The liquidation balance sheet contains information about the assets that remained with the organization at the time of its liquidation and before settlements with the founders are made. Based on the liquidation balance sheet, one can judge the property that goes to the founders. The liquidation balance sheet is approved by the founders (participants) of the legal entity or the body that made the decision on liquidation, and is agreed upon with the tax authority. After its approval, a record of the liquidation of the legal entity is made in the Unified State Register. Undoubtedly, there is uncertainty regarding the date of dismissal of workers. As already noted, in accordance with the Labor Code of the Russian Federation, the basis for terminating an employment contract with employees under clause 1 of part 1 of art. 81 of the Labor Code of the Russian Federation is the liquidation of the organization itself, and a legal entity is liquidated from the moment the corresponding entry is made in the Unified State Register. According to paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”<12>grounds for dismissal of employees under clause 1, part 1, art. 81 of the Labor Code of the Russian Federation can serve as a decision on the liquidation of a legal entity, i.e. a decision to terminate its activities without transferring rights and obligations by way of succession to other persons, adopted in the manner prescribed by law. The very decision to liquidate a legal entity, as follows from the relevant norms of civil law, can be made long before the actual liquidation. Hence, in practice, termination of employment contracts with employees on the specified basis can occur (and often occurs) in several stages, which, of course, does not comply with labor legislation and judicial practice. As an option to solve this problem, it is possible to make changes to clause 1, part 1, art. 81 of the Labor Code of the Russian Federation, which can be supplemented with an indication of the “decision” on liquidation. But even in this case, various abuses regarding the rights of employees cannot be ruled out, since the decision to liquidate itself does not mean the actual liquidation of the legal entity. ———————————<12>Russian newspaper. 2006. 31 Dec.
Many problems also arise in relation to the head of the organization and the employees who are part of the liquidation commission. Those who initiated liquidation themselves appoint a liquidation commission, resolve issues related to its personnel, and in the case where liquidation is carried out by court decision, the court can assign the corresponding responsibilities to the founders (participants) themselves or the body authorized to liquidate its legal entity constituent documents. In this case, each of the commission members, if he is an employee of this organization, must also be warned of the upcoming liquidation personally against signature at least two months in advance and dismissed at the time the entry is made in the register. But the question arises: what job function will this member of the liquidation commission perform? After all, the liquidation commission is created precisely in order to liquidate the organization, and not to continue the implementation of production activities, therefore, the performance of labor functions by an employee who is part of the liquidation commission is terminated. Just as the activity of the head of the organization as a leader ceases. The powers of the head of the debtor, other management bodies of the debtor and the owner of the property of the debtor - a unitary enterprise are terminated from the date the arbitration court makes a decision to declare the debtor bankrupt and to open bankruptcy proceedings. According to Art. 126 of the Federal Law “On Insolvency (Bankruptcy)”, the head of the debtor, as well as the temporary manager, administrative manager, external manager, within three days after the approval of the bankruptcy trustee, are obliged to ensure the transfer of the debtor’s accounting and other documentation, seals, stamps, material and other assets to the bankruptcy trustee. Regarding the notification of the head of the organization about the upcoming forced liquidation, the issue was resolved in Federal law“On Insolvency (Bankruptcy)”, which states that it is the bankruptcy trustee who has the right to dismiss employees of the debtor organization, including the head of the organization (Article 129 of the Federal Law “On Insolvency (Bankruptcy)”). From this we can conclude that the notice of the upcoming dismissal of the manager will be signed by the bankruptcy trustee himself. In case of voluntary liquidation, such a notice must be signed either by the owner himself or by a body authorized by the constituent documents. The next question is: what grounds for termination of an employment contract should be indicated in the work book of the head of the organization? Due to some discrepancy between the norms of civil and labor legislation and the actual practice of their application regarding the date of the proposed dismissal, the legal literature expresses the opinion that it is possible to refer to paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, but such an instruction will be legal only in case of voluntary liquidation of the organization, but in case of forced liquidation it loses all meaning. The unfortunate wording of paragraph 1 of Art. is also puzzling. 278 Labor Code of the Russian Federation. How can removal from office be simultaneously the basis for termination of an employment contract, because from the point of view of labor legislation, the terms “removal” and “termination” designate completely different legal categories that entail completely different legal consequences. It is also not possible to count on the fact that the employment contract of the head of the organization will contain an indication of a court decision as the basis for terminating the employment contract when making a decision to liquidate a legal entity. Even if the condition for termination of the employment contract at the initiative of the employer is indicated as the basis for termination, if budgetary institution overdue accounts payable exceeding the maximum permissible values established by the body exercising the functions and powers of the founder<13>, this basis will only apply to this particular case. ———————————<13>See: Federal Law of May 8, 2010 N 83-FZ “On Amendments to Certain legislative acts of the Russian Federation in connection with the improvement of the legal status of state (municipal) institutions” // SZ RF. 2010. N 19. Art. 2291.
If there are general and special grounds for termination of an employment contract, dismissal must be made on a general basis. Thus, the only correct thing would be to make an entry in the manager’s work book - clause 1, part 1, art. 81 Labor Code of the Russian Federation. Moreover, the date and grounds for termination of the employment contract must be the same for all employees of the liquidated organization. In this regard, contradictions between the norms of civil and labor legislation should be immediately eliminated. Otherwise, it is not possible to combine settlements with creditors with the date of actual liquidation of the organization. Therefore, in case of voluntary liquidation, the date of termination of the employment contract should be the date of approval of the liquidation balance sheet. In the case of forced liquidation, the date of the arbitration court’s determination to complete bankruptcy proceedings. This determination is the basis for making a record of the debtor’s liquidation in the Unified State Register of Legal Entities. In any case, this conflict can be resolved either by adopting an appropriate clarification at the level of by-laws or at the level of a resolution of the Plenum of the Supreme Court. In addition, it is advisable to exclude from Art. 278 of the Labor Code of the Russian Federation, paragraph 1 and add it to Art. 76 of the Labor Code of the Russian Federation, concerning the grounds for removal of employees from office. It is obvious that until the completion of bankruptcy proceedings, the manager must be removed from office, and then, from the date the arbitration court issues a ruling on the completion of bankruptcy proceedings, he must be dismissed under clause 1, part 1 of Art. 81 Labor Code of the Russian Federation.
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The liquidation of an enterprise, organization, firm, or company always ultimately leads to the complete cessation of the activities of the legal entity. This process should not be confused with other types of reorganizations, when enterprises can merge into one, transform, reduce staff, etc. Stopping the work of an enterprise and dismissing workers makes the procedure special. Therefore, dismissal due to the liquidation of an organization will also be different from dismissal of employees under other circumstances.
The procedure for terminating labor relations with personnel must be entirely carried out in accordance with the Labor Code of the Russian Federation (Labor Code of the Russian Federation). Therefore, we will consider the most important points on how to fire people from a liquidated enterprise so that everything is in accordance with the law.
With an order about his own dismissal Each employee should familiarize themselves with a signature. If a subordinate does not agree that he is being fired and refuses to sign the order, then his refusal will simply be recorded by the personnel officer in a special act, which in such cases is provided for in Part 2 of Article 841 of the Labor Code of the Russian Federation.
If an employee refuses to sign a notice of the impending cessation of the existence of the enterprise, as well as an order of dismissal in connection with liquidation, then it is better for the personnel officer to draw up an act indicating that the employee refused to sign. The act must clearly indicate the date and signature of the employee. Through the court, the enterprise will still lose the right to exist, and the employee, in turn, risks not receiving the payments that are due to him under the Labor Code of the Russian Federation as severance pay. If liquidation of a branch is planned, then the regime for its termination and termination of employment contracts should also occur in general procedure. However, all the documentation is signed by the head of the branch.
Early dismissal upon liquidation of an enterprise
In case of early dismissal, the subordinate must also be notified in advance, he is given the opportunity to study the written warning and confirm it with his signature. In this case, the notification is sent earlier than a 2-month period with a guarantee of additional payment, which is compensation assigned in such cases separately (clause 9 of Article 255 of the Tax Code of the Russian Federation).
No taxes or insurance payments will be assessed on such compensation. Everything else is carried out in the general order - you need to issue an order for each employee, make an entry in the work book about the dismissal, if dismissed under Article 81, paragraph 1 of the Labor Code. The early warning period for full-time employees is limited and can start from 1 month ahead of schedule, up to 2 months.
What are the features of the procedure?
In order to properly dismiss an employee and accrue to him all the payments due when the company soon ceases to exist, it is necessary to take into account such and his features. If this is a pensioner, then you should pay attention to the specifics of his dismissal. If this is a director, then his own form and procedure for terminating his official activities must be followed. to this enterprise, which will not happen soon.
Dismissal of a director upon liquidation of an LLC
A director's duties in connection with the winding up of his firm will cease as soon as the order commencing the proceedings is issued. Therefore, his future fate will largely depend on whether he is accepted into the liquidation commission and on what rights.
If a manager resigns when it is necessary to liquidate the organization that he managed, then his position is taken into account - whether he will be appointed to the liquidation commission or not.
If such an employee is appointed chairman of the liquidation commission, then he, as it were, continues to manage the company, but only from the position and with the goal of ending its existence.
Such a person is also entitled to his own payments, who will appoint liquidators by a joint decision. The Labor Code here also dictates a condition related to the director-citizen under Article 81, but only he is the last to be fired.
Dismissal of a maternity leaver upon liquidation of an enterprise
When required in such a case, it is necessary to explain to the woman that the law does not have the right to retain her workplace under such circumstances (Part 1 of Article 81 of the Labor Code of the Russian Federation). All payments due must be made for the employee in accordance with the Labor Code of the Russian Federation and taking into account all her social benefits.
The procedure itself in connection with liquidation can be a morally complex process, therefore such workers should be provided as much as possible with all possible social guarantees that may appear in such cases. Workplace You can’t offer her one, because it simply won’t be available soon, but you can pay her a good severance pay.
Dismissal of pensioners, seasonal workers or part-time workers
Employees who are pensioners must also resign according to the laws of the Labor Code of the Russian Federation. Such an employee is also notified two months in advance and is paid an appropriate allowance in the amount of 2 weeks’ average earnings. With seasonal workers or part-time workers, the same termination of employment occurs.
The only thing is that with those who were hired temporarily, for a period of less than two months, you simply need to terminate the contract, without any payments other than what you earned. Therefore, the departure of a pensioner, part-time worker or seasonal worker is processed in the same way as with main workers, only with a difference in the amount of payments and notice periods.
Payments to employees when they face dismissal due to liquidation of the enterprise
In order to correctly make all accruals and payments to dismissed employees, you must follow a certain procedure and rules:
- Earnings are taken into account for the period of time already worked that was not paid, which ends with the date of issuance of the dismissal order.
- If a subordinate did not have time to rest on vacation according to the schedule, then he is entitled to compensation for the fact that he did not use calendar leave.
- The severance pay is calculated in the accounting department in a special way and amounts to payment for 2 months, and for residents of the Far North - 3 months of being registered with the employment center, provided that the dismissed person has not been able to find another job during all this time.
The average monthly earnings are taken into account, which for dismissal during liquidation full-time employee is taken as a monthly average, for a seasonal worker - two weeks. But for a conscript hired for a period of less than 2 months, severance pay is not provided.
If an employee pays alimony but is dismissed due to the liquidation of the organization, then his benefit will necessarily be calculated taking into account this financial obligation. He is obliged to pay the children a certain portion of his earned income, determined by a court decision. Therefore, it is the court decision and the amount determined in the decision that will be taken into account.
There is still social protection and guarantees for those dismissed by order in connection with the cessation of the existence of an enterprise. But for this, employees must be officially employed in accordance with the labor legislation of the Russian Federation.
Because if people work for a company without official registration, then they are most at risk of being left without severance pay in the event of a liquidation process. There are cases when an employer takes care of his subordinates and, dismissing them, offers them other jobs at other enterprises, having previously agreed with other employers.
