Persons whose positions are being abolished. The employer must do this 2 months before dismissal. He does not have the right to reduce the forewarned contingent before the specified period, but he may interest them by offering early dismissal with the payment of additional benefits, of course, while retaining the right to all payments due during the reduction. Art. 180 of the Labor Code of the Russian Federation regulates the early dismissal of an employee before the expiration of the notice period. Let's talk about the nuances of such a dismissal.

Legal basis

Art. 180 of the Labor Code allows the employer to terminate the employment relationship with the employee before the end of the notice period for dismissal, provided:

• written consent of the employee;
• payment of average earnings for the days remaining before the dismissal date specified in the warning.

Art. 180 of the Labor Code assumes that the proposal for early dismissal comes from the employer and does not contain a direct indication of the possibility of taking the initiative to break labor relations employee, but does not prohibit it. Therefore, an employee can present his proposals to the administration in a statement addressed to the manager, or agree with the employer’s proposal, which is much more common in practice.

Application for early dismissal due to layoff: sample

The application (consent) of the redundant employee can be in the form of:

• a conciliatory inscription directly on the letter containing the conditions for early dismissal from the employer. For example, “I agree to early dismissal due to staff reduction with payment of all compensation and benefits. Full name, date, signature";
• a separate application for early dismissal upon reduction.

Such a statement is addressed to the manager; it must contain all the necessary information:

• Full name and position of the applicant;
• text of the application - confirmation of consent to dismissal before the end of the notice period;
• date and signature.

We offer approximate form statements:

The manager, having read the application and signed it, sets the date of dismissal, since it is he who is given the right to cancel the employment relationship. Those. he has the right to agree or disagree with the determination of the date of dismissal by the employee. The law does not comment on this circumstance; the date of dismissal can be any day in the two-month period indicated in the warning.

Note that the application form in the proposed consent form for early dismissal is most preferable, since a petition coming from an employee and written in a different way can be regarded as dismissal due to at will. At the same time, the right to receive additional compensation payment the employee is lost.

Based on the written consent of the employee, a dismissal order is issued before the expiration of the notice period for layoffs, based on the data of which the accountant makes the final calculation.

Payments in case of early dismissal

Like all other laid-off employees, those dismissed early are entitled to receive:

• salaries (with all bonuses and incentives) as of the date of dismissal;
• severance pay in the amount of average monthly earnings (or payment approved by industry agreements in force in the company). Also, for the duration of the job search (no more than 2, and in exceptional situations 3 months), employees retain their average salary, including the paid severance pay.

In addition, those dismissed early are entitled to additional compensation in the amount of the average monthly salary, calculated in proportion to the time remaining until the date of dismissal specified in the warning.

It is calculated by multiplying the amount of average daily earnings by the number of working days remaining until the date of dismissal indicated in the notice.

The employer’s obligation is to pay all due amounts (except for the retained salary for the 2nd and 3rd months of job search) on the day of dismissal.

Example of payments for early dismissal due to staff reduction

Employee of the company Ilyin P.B. was warned of dismissal due to a reduction in the company's workforce on April 20, 2018. The company administration asked him not to wait for the dismissal date (June 20, 2018), but to agree to an early layoff on April 30. Based on his written statement, the employment contract was terminated.

Salary of Ilyin P.B. – 46,000 rub. per month. The vacation has been fully used. In addition to the salary (46,000 rubles for April) and severance pay (46,000 rubles - average earnings), he needs to pay additional compensation for the period from May 1 to June 20, i.e. for 32 working days remaining before the official date of reduction . We will make the calculation provided that the billing period has been fully worked out. It is 247 days.

Average daily earnings: 46,000 x 12 / 247 days. = 2234.82 rub.

Amount of additional payment: 2234.82 x 32 days. = 71514.24 rub.

The total amount of accrued payments on the day of Ilyin’s dismissal: 46,000 + 46,000 + 71,514.24 = 163,514.24 rubles.

How to resign early if you are downsizing

According to the law, when reducing staff, the employer notifies the dismissed employees in advance in writing a certain time before issuing the dismissal order.

However, the Labor Code of the Russian Federation allows for a situation where an employee may not wait for this time and give consent to early dissolution labor contract. Let’s figure out how this happens, when it’s possible and what an employee can count on.

When is early dismissal acceptable?

According to the law, the procedure for reducing staff or number of employees is as follows.

1. The employer issues a layoff order and notifies the trade union (if there is one) and the employment service.
2. He determines (individually or with the help of a commission) which of the employees will be laid off.
3. Employees, upon signature, are familiarized with the dismissal order due to reduction and are warned about the date of dismissal.
4. When the time comes, the head of the organization, by his order, dismisses the employees being laid off.

Otherwise, the employer may dismiss him not due to layoff, but at his own request, that is, without paying due benefits and compensation.

Submitting an order before the warning period expires

Having received an application from the employee agreeing to early dismissal, the employer must issue a termination order employment contract. This obligation is provided for in Art. 84.1 Labor Code of the Russian Federation.

The order is usually issued on the basis of the unified form T-8, approved by Decree of the State Statistics Committee of the Russian Federation No. 1 of 2008. With the entry into force of the Federal Law “On Accounting”, the form ceased to be mandatory, but in practice, enterprises usually do not develop and approve separate forms for such orders.

IMPORTANT: If only one of the employees being laid off is dismissed early, you must use Form T-8. If there are several of them, the T-8a form is used.

The order must indicate:

• name of the organization or name of the individual entrepreneur;
• number and date of compilation;
• number and date of conclusion of the terminated employment contract;
• full name, position and structural subdivision where the dismissed employee worked;
• grounds for dismissal: you need to use the wording from clause 2, part 1, art. 81 of the Labor Code of the Russian Federation as it is used in the law;
• documents: details of the layoff order and the employee’s written consent to early dismissal are indicated;
• date of dismissal;
• signatures of the employer approving the order and the employee indicating that he has read the text of the document.

You can download a sample order.

If there is a trade union at the enterprise, then at the bottom of the order the details of its written opinion on the dismissal are indicated.

What is included in the work book

For any dismissal, an entry must be made in the employee’s work book. You should be guided by the rules established by the following regulations.

1. Instructions for filling out, approved by Decree of the Ministry of Labor of the Russian Federation No. 69 of 2003.
2. Rules approved by Decree of the Government of the Russian Federation No. 225 of the same year.

According to their standards, the work book must indicate:

• serial number of the entry (numbering in the book is continuous).
• date of dismissal;
• reason for dismissal (the following is written down: “Dismissed due to staff reduction in accordance with clause 2, part 1, article 81 of the Labor Code of the Russian Federation”);
• details of the dismissal order.

Below is the signature of the head of the organization or another person who has the authority to dismiss the employee. The signature is certified by the seal of the organization for documents, if there is one.

Upon receipt of the work book, the employee signs it, confirming that he has read the text of the entry.

Payments for early dismissal in case of staff reduction

The dismissed employee must receive the following upon settlement.

1. Severance pay in the amount of average monthly salary. It is calculated according to the rules established by the Regulations (approved by Decree of the Government of the Russian Federation No. 922 of 2007).
2. Compensation for early dismissal. It is calculated by multiplying the number of working days remaining until the end of the notice period by the average daily earnings.

In the future, the employee can count on payments for the time he looks for work.

Severance pay is counted as payment for the first month.

To receive the average salary for the second, the employee must present a work book that contains no records of new employment. If, within 15 days from the date of dismissal, the employee is registered with the labor exchange, then upon presentation of a certificate from there, he can count on payments for the third month.

Finally, upon dismissal, the employee receives other payments provided for by the Labor Code of the Russian Federation or the terms of his employment contract.

Labor legislation gives him the right to take initiative in this case. One of the manifestations of this initiative is that an employee who is being laid off will not be able to leave work early without the consent of the immediate manager of the organization or enterprise.

And the employee’s reasons may be quite valid. For example, he found a new workplace and wishes to begin his duties immediately. To obtain management’s consent to early termination of an employment contract, the employee must write and submit an application.

However, the presence of such a document does not guarantee that the employee will receive what he wants.. The legislation gives the right to early care according to Federal law No. 197, however, does not impose such an obligation on employers. That is, the decision in this case will depend on the goodwill of management.

The basis for early termination of an employment contract is an application submitted by the employee.

In this document, he asks management to allow the calculation at his request, referring to the main reason for submitting the document, that is, the upcoming change in staff busy schedule.

According to Article 180 of the Labor Code, the employee’s consent, recorded in the application, precisely gives the manager the right to formalize early dismissal. Without such consent, the employer has no right to terminate the employment relationship. This will violate the general reduction procedure provided for by law.

The legislation does not provide for a unified form () for drawing up an application. For this reason, the employee draws up the petition at his own discretion. However, receiving an early payment will depend on the correctness of all wording. Therefore, the following points are included in the document:

• The title of the document is indicated at the top and an appeal is made to the head of the organization or enterprise (name legal entity fits in completely).
• Below is a request to allow early termination of the employment contract due to upcoming reduction working staff (indicate the number and date of the notification received from the employer).
• It is necessary to enter information that there were, but the employee refused them. It is also recorded that the employee, despite early payment, claims all payments required by law (this is a very important point that allows you to avoid discrepancies in the document!).
• Next, enter the desired date of termination of the employment contract.
• The document is signed with a decoding of the name and patronymic. The date of its compilation is indicated below.

It is necessary to understand that for certain categories of workers such care is not of particular value. Standard procedure reduction involves distribution to dismissed employees two months before the planned termination of employment contracts.

This rule applies exclusively to persons with whom an open-ended contract has been concluded.

Fixed-term contracts require the employer to send notice one week before the planned dismissal. If the contract is concluded for the performance seasonal work or has a short period of validity (two to three months), notification will be sent three days in advance. Obviously, early payment with such short term The employee is unlikely to need to wait for termination of the employment contract and final payment.

It is also necessary to understand that in most cases the employer is interested in the early departure of the employee. Despite the obligation to provide additional compensation for early payment, the employer will be able to avoid problems with jobs. After all, staff reduction implies the cancellation of a certain position or the transfer of part of its functions to other employees (structural units).

Due to the lack of a necessary position (workplace), it will be easier for the employer to say goodbye to the employee early than to pay him for another two months before the day of dismissal announced in the notice.

Early dismissal procedure

The reduction of the workforce is carried out taking into account several articles of the Labor Code.

Most of the procedure for the early departure of an employee is not much different from the standard termination of a contract. The employer takes the following actions:

1. It is issued recording the order to begin the procedure for reducing staff positions. That is, change staffing table, from which certain positions (jobs) will be removed as a result.
2. The personnel department, which received this order, is compiling a list of positions and employees subject to layoffs (according to Article 179 of the Labor Code).
3. After which, employees included in the list are notified in writing.
4. Notifications prepared by personnel officers are signed by the head of the organization or enterprise, and then handed over to dismissed employees for review.
5. Upon receiving such a notice, the employee must sign it. Refusal to sign the situation will not change the situation, since in fact the position of this employee has already been excluded from the staffing table, and the upcoming dismissal is considered a legal fact.
6. But, nevertheless, the refusal is recorded in a separate act, which is then attached to the employee’s personal file.
7. After signing or not signing the notice, the employer talks with the dismissed employees, offering them a choice of different vacant positions.
8. It should be noted that those belonging to preferential categories (for example, pregnant employees).
9. At this stage, the employee who has decided to leave in advance draws up a statement and submits it to the manager. The document undergoes mandatory registration in the accounting book, it is performed by the secretary or other responsible person. After which the application goes to the manager’s desk.
10. Having considered the employee’s request, the employer satisfies it or refuses to satisfy it. After which a resolution is imposed on the application.
11. If the decision is positive, a separate order is prepared. Based on it, employees of the accounting and personnel departments accrue funds.
12. The accrued amounts are handed over to the dismissed employee on the day that was indicated by him in the application (and then duplicated in the management order).

What payments are due?

It is more economically profitable for the employer if the employee leaves. However, if this wording is not indicated in the application written by the dismissed employee, payments are accrued in full. They are formed:

Labor legislation allows the dismissal of a redundant employee before the two-month period established for warning of such dismissal. With such early dismissal, the employee must make the same payments that would be due to him if dismissed due to staff reduction on time, as well as pay additional compensation.

Early dismissal due to reduction

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

The conditions for early dismissal are:

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

Since the basis for dismissal specified in the order and work book will be clause 2, part 1, art. 81 of the Labor Code of the Russian Federation, the employee is entitled to all the guarantees and benefits established by law for laid-off employees.

Registration of early dismissal due to reduction

From Part 3 of Art. 180 of the Labor Code of the Russian Federation it follows that the proposal for such early dismissal must come from the employer. However, there is no prohibition on the opposite option, which means that an employee can come up with a similar initiative. The employer has the right to agree or refuse.

Employees dismissed early due to layoffs also receive additional compensation in the amount of their average earnings, calculated in proportion to the time until the end of the notice of dismissal.

An employee laid off early can claim a maximum of five of his average earnings (“northerner” - up to eight).

All amounts due to the employee (except for retained earnings for the 2nd and 3rd months of unemployment) must be paid on the day of dismissal - Art. 140 Labor Code of the Russian Federation.

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

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

How to correctly calculate additional compensation for early dismissal?

The average monthly salary of an employee, which is used, among other things, to calculate additional compensation, includes all payments provided for by the organization’s current remuneration system (Article 139 of the Labor Code of the Russian Federation and the Regulations on the specifics of the procedure for calculating the average salary, approved by Government Resolution dated December 24 .2007 N 922 (hereinafter referred to as Regulation No. 922)).

Let's look at an example of calculating such compensation.

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

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

Clause 9 of Regulation No. 922 prescribes the use of average daily earnings in determining average earnings in cases provided for by the Labor Code of the Russian Federation. Average earnings are found by multiplying average daily earnings by the number of days in the payable period.

In our situation, the average daily earnings are found by dividing the amount of wages actually accrued for the days worked in the billing period (including bonuses and remunerations in accordance with clause 15 of Regulation No. 922) by the number of days actually worked in this period.

The billing period is 248 working days.

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

The amount of additional compensation for early dismissal is 77,419.35 rubles. (RUB 2,419.35 x 32 working days).

The abolition of staff at an enterprise leads to the release of employees who are forced to look for new job. Sometimes they find her before the employment contract is terminated. In this case, an early dismissal procedure may be applied. But workers are interested in the issue of the payments they are entitled to in this case. Some complain that the legislation is vague, but this is not the case. The only thing is that you need to make sure that the management of the enterprise does not carry out dismissal on other grounds that are less profitable for the released personnel.

Reasons for changing the number or staff

Downsizing at an enterprise is carried out by decision of its owner or manager. Grounds for changing the number or staff – corresponding. It states:

1. Accepted changes at the enterprise.
2. Their reason and effective date.
3. Persons affected by the reduction.
4. Instructions to the personnel officer and accountant.

After registering this order, the dismissal procedure begins, which takes place within 2-3 months, sometimes longer. During this period, persons planned for layoffs are offered vacant positions, the required payments are accrued and given, and they are awarded employment history. For some of them the process will be drawn out. This applies to persons who are on vacation or sick leave.

From the moment the laid-off employees are notified of the planned optimization, the above-mentioned period of 2-3 months before termination is counted labor agreement. The latter can happen earlier if both parties do not object. In this case, the staff are paid in case of early dismissal.

Termination of an employment contract by agreement of the parties

Unscrupulous employers from the moment the decision on optimization is made labor force looking for an opportunity to save on payments. According to surveys and based on legal practice, every eighth person does not pay money at all, and a third tries to persuade people to terminate the employment contract by agreement of the parties.

Sometimes unscrupulous managers try to use an employee’s desire to resign prematurely due to staff reductions to induce termination of the employment relationship by agreement of the parties. Otherwise, they refuse the request of the dismissed person and demand that he work for the required 2 or 3 months. There is no point in complaining for the following reasons:

• In case of layoffs, early resignation can be made on the initiative of both the employee and the management of the enterprise;
• The procedure is carried out only with the consent of the employer.

It is not profitable for an employee to agree to the proposed deal with management. Yes, he gets the opportunity to immediately start looking for a job, find and fill a vacancy in the next few days. But he is deprived of the right to count on payments that are provided for in the personnel reduction procedure. It provides social protection redundant personnel who are given money that allows them to look for a new job within 5 months. During this period the previous monthly income is saved.

What benefits is an employee entitled to?

To calculate how much an employee will lose if he agrees to dismissal by agreement of the parties, it is necessary to calculate all the amounts that he will lose. So he can count on the following payments in case of early dismissal:

• Five (or six) average monthly earnings;
• Compensation for unused vacation.

Of the five salaries, two (or three) are paid for the unexpired notice period of dismissal. Another salary is given for the first month of job search.

Sometimes they mistakenly believe that, in addition to severance pay for 1 month of employment, they should also give the average salary for this period. The names are different, but the payout is the same. Reason for error - Labor legislation provides for two payments:

• Average salary for 1-3 months during the job search period;
• Severance pay for 1 month.

However, the latter is issued precisely on the basis of average earnings for 1 month. You can receive double pay for this period if the employment contract contains the appropriate conditions.

Severance pay

If for the first month after dismissal an employee immediately receives money, for the remaining two months not everything is so clear. Each subsequent severance pay is issued subject to certain conditions being met.

In case of non-employment in the second month, reduced employee comes to former employer and submits an application. It states:

1. The fact is that the applicant has not found a new job.
2. Requirement to pay severance pay for the second month.
3. Attached work book confirming this fact.

The documents are submitted to the personnel officer, he checks them for compliance with the law, and then turns to the management of the enterprise with a recommendation. The employer has the right to verify the authenticity of the information specified in the application. For example, this is done through an employment service or a detective agency, the main personnel departments and agencies are called, and other possibilities are used.

If the information in the application cannot be refuted, the company is obliged to pay the required money. Severance pay for the third month is calculated:

• Based on a document issued by the employment service;
• Provided that an unemployed employee is registered within 14 days after the day of termination of his employment contract.

The two weeks are counted from the moment of actual termination of the contract, and not from the day established by the order of reduction, when early termination was not considered.

Receiving a certificate from the employment service is an informal event. The inspector may refuse it, citing the unscrupulous behavior of the unemployed. This means his absence from classes, unreasonable (in the opinion of the inspector) refusal of vacancies, etc.

Wage

To calculate all due payments in case of early dismissal, you should establish the total amount of wages for the last 12 months. This does not include vacation pay, travel allowances, and other additional payments. At the same time, bonuses are taken into account. This amount is divided by the number of working days that the employee worked. Vacation and sick leave are also not taken into account. The resulting value gives the average daily earnings (ADE), which is used in the calculations of compensation and severance pay.

Other compensation

The terms of the employment contract may also provide for other ones. For example, a valuable employee or top manager may demand an increased amount of severance pay and the period of its payment. If a dispute arises and goes to court, the latter takes into account the terms of the agreement. If they don't contradict labor legislation, the employee's requirements are satisfied.

Calculation example

Salary V.V. together with monthly additional payments for qualifications and bonuses, it amounts to 42,821.39 rubles. Taking into account the vacation for the year, the total earnings amounted to 473,035 rubles. In the estimated 12 months V.V. work time was 265 days. The average daily earnings was 1785.03 rubles.

The notice period for termination of the contract expires after 34 working days. Compensation due 1785.03×34= 60691.28 rub. There are 21 working days in the month following dismissal. The severance pay is 1785.03×21=37485.63. The total amount of payments is 98,176.91 rubles.

Useful video

Conclusion

The considered dismissal procedure is the most favorable for laid-off employees. They have a lot of time at their disposal for employment, when they do not have to worry about wages. The required payments are the responsibility of the employer. And if he violates it, he can be held accountable through regulatory authorities and the court.