The process of dismissal due to staff reduction itself carries with it some negative consequences for the employee. It happens that after devoting more than one year of his life to an enterprise, a person loses his position. The reason for this is the reduction in the organization's staff. Employees are usually wary of such a situation and want to avoid it. For the employer, this process requires great responsibility and competence, as it must take place in accordance with the law, respecting all his rights.

If a layoff of a worker is still expected, then there is an option that mitigates all the unpleasantness of this procedure - his early dismissal, that is, termination of the contract without waiting for the moment of immediate reduction. How to properly start and complete the process of early dismissal due to staff reduction in accordance with the law? Let's look at this next.

Early termination of the contract

Based on what is set out in the Labor Code of the Russian Federation, the employer has the opportunity to dismiss the worker before the layoff deadline, that is, before the expiration of the required two months. Article 180 part 5 states that that the person hired has the right to terminate employment contract having received the employee's consent in a written form.

Early dismissal requires the interest of both parties - both the employer and the employee. The employer’s interest prevails, since he decides whether to follow this path or not.

It is important for an employee who wishes to terminate a contract with an employer early to know that the guarantee of success in the further dismissal process and financial settlement with him depends on the correctness of the application written by him. The wording of the statement must be clear, eliminating the double meaning of what is stated: precisely because of staff reduction, and not on one’s own initiative, since dismissal payments are calculated according to different relevant items.

In the written statement, the dismissed person must indicate that he was informed of his layoff, indicate the date of this deadline, and list the vacancies offered to him (if this occurred). The main thing is to emphasize that he wants to terminate the contract before the moment of reduction occurs. It is also important to state that he expects to receive the payments due in this case.

Early dismissal of a worker is possible only with the consent of the organization's management. If it is received, then the employee is entitled to payments, taking into account that the contract was terminated early.

Payments

Dismissing an employee before the layoff deadline is fraught with financial costs for the employer - have to additionally compensate him premature termination of the contract.

Payments that the employer is obliged to assign to an employee who is dismissed early due to staff reduction:

• wages for working days of the month in which the dismissal occurred;
• monetary compensation for unused vacations;
• compensation equal to the average employee’s earnings, the calculation of which is proportional to the remaining days before the expiration of the notice period for layoffs;
• severance allowance equal to the average salary of the person being dismissed;
• average earnings for two months, counting from the date of dismissal.

Situations often occur when a person fired due to at willthe employee goes to court with a statement asking to reformulate the reason for his dismissal, namely, “early dismissal due to staff reduction”, and assign the payments due to him. He can justify this by exerting pressure from management at the time he submitted the application.

Payments for early dismissal due to staff reduction are also discussed in the video below. Enjoy watching!

Employee's appeal to court

First of all, the plaintiff, and in this case a former employee, must know that he will be required to prove the pressure, in his words, exerted on him.

Actions of the court:

1. Studying the reasons for writing this statement by an employee who was fired.
2. Clarification and analysis of the conditions under which this statement was written.
3. Finding out the employee's true intentions.
4. Studying the text of the application, the presence of the required details - dates, signatures, management’s conclusion on this application.

If the dismissed employee is able to prove that the statement was written under pressure from management, then the terminated contract will be declared illegal. The court will oblige the employer to rephrase, and will also impose obligations to pay all due benefits, as well as compensation for moral damages, and legal costs. It is possible that the court may oblige the employer to reinstate the worker.

ABOUT illegal dismissal read the employee, and the legal consequences of such termination of the employment contract are described.

Both the employer and the employee should be interested in a peaceful resolution of the situation arising in connection with the reduction. This is achievable by the employer by complying with the rules and regulations during the dismissal process, without violating the rights of laid-off employees.

Current legal regulation carefully provides for the grounds and procedure for terminating the employment agreement.

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One such reason is a reduction in the number of employees. How is early dismissal carried out during layoffs?

Conditions for terminating an employment contract

Of course, the employer can decide to reduce staff, but the employee is also entitled to certain rights.

First of all, you need to know that to begin this procedure, an appropriate decision of the authorized body is required.

Only after this can you begin to terminate employment contracts.

You need to know that certain categories of citizens cannot be laid off (for example, pregnant women and women on maternity leave, minors, etc.).

The employer must also notify employees of the termination of the employment agreement at least 2 months in advance. This is a mandatory requirement.

If necessary, he must provide the employee with time during the working day to search new job.

The legislative framework

Termination of an employment agreement by this basis provided for in .

The employer may also have certain internal documents that govern the procedure for dismissing employees. But these regulations cannot contradict the Labor Code of the Russian Federation.

Early dismissal due to layoffs

It is this document that serves as the basis for termination labor relations.

It must contain the following information:

• employer details;
• employee data;
• number and date of conclusion of the employment agreement;
• request to terminate this agreement;
• date of termination of the contract.

At the end, the employee must sign and indicate the date of preparation of this document.

Making an order

After receiving the employee's application, the employer must take certain actions. In particular, it is necessary to accept and sign the corresponding.

This is an internal document of a specific enterprise, which confirms the fact of termination of labor relations and on the basis of which the contract concluded with the employee is terminated.

The order must indicate the following information:

• employee data, including the name of the department in which he works;
• his position;
• to terminate legal relations;

The order is drawn up by the enterprise personnel officer and signed by its director. The law states that this document must be provided to the employee for review.

After this, the employee puts his signature on the back of the document: this indicates that he was familiar with the contents of this document.

Recording in labor

After termination of the employment agreement, the relevant information must be recorded in the employee’s work book.

It is necessary to record the date of termination of work on this enterprise, as well as the grounds for termination of the agreement.

The appropriate field must contain the signature of an authorized employee, as well as the seal of the company, if there is one, of course.

Payments

Many employees who are at risk of dismissal due to reductions in the company are interested in the question of what they can receive, because certain additional guarantees are provided for this category of employees.

Is severance pay available?

Upon dismissal on this basis, the amount of severance pay is the amount of the average monthly earnings of a particular employee. It must be paid on the day of termination of the employment agreement.

If the employee received notification of layoffs, but chose to submit a corresponding application and terminate the contract on his own initiative, then in this case he will not be paid severance pay.

Accordingly, in this case, the entry that was made in the employee’s work book is decisive.

Compensation for unused vacation

If an employee has unused vacation days, he must receive monetary compensation for them upon termination labor relations. This is a mandatory legal requirement.

Moreover, for each unused day he receives his average daily earnings.

The basis for termination of the contract in this case does not play any role: compensation for those vacation days that were not used by the employee is always paid.

Controversial issues

In practice, various controversial situations often arise. Basically, many disputes during layoffs arise in cases where the employer does not comply with the deadlines provided for notifying employees.

This issue has received its own clear legislative regulation: for each day of delay, the employer must pay monetary compensation.

But even if there is legislative regulation, in practice disputes arise on this issue.

The next controversial issue is related to the fact that the employer does not offer the employee a suitable job during redundancy. And the law says that he is obliged to offer such work, if, of course, there is one.

In practice, many employees file a claim in court and argue that the employer could have provided them with another job that was not offered to them.

The law does not prohibit the early dismissal of an employee when staffing is reduced on the employee’s initiative. This gives the employee the opportunity to start looking for a new job as quickly as possible..

The procedure for dismissal due to staff reduction is quite complex and paper-based. First, the employer must issue an order to reduce staff. This is not an order to dismiss for any reason, it is an order to begin redundancy measures.

The order indicates which positions are subject to reduction.

Then, each employee who is laid off must be notified in writing. The employee signs the notice, thereby indicating that he has read it. The employee must be notified at least 2 months in advance. This means that the employee will work for about 2 more months and then be fired. But there is early dismissal when staffing is reduced, which means that the employee quits before the end of 2 months. But how to do it right to get everything due payments?

When reducing staff, the employer must make the following payments to each employee:

• salary for all actually worked shifts or days in the month in which the employee writes the application;
• compensation for missed vacation;
• severance pay in the amount of one average monthly salary of this employee;
• benefits for the duration of employment of a redundant employee. According to the law, the employer must pay only 2 months of employment in the amount of the average earnings of this employee for each month;
• if an employee registered with the employment center within 2 weeks after being laid off, but was unable to find a job within 2 months, then the employer must pay another average salary.
• If there is an early dismissal due to layoff at the initiative of the employee, the employer must pay another benefit, which is calculated in proportion to the remaining working days before the layoff.

In order not to lose all of the above payments due to the employer’s dishonesty, you need to resign correctly.

If an employee resigns on his own initiative, he must write a statement of his own free will. To “correctly” resign early when reducing staff, you need to write the application correctly.

The application must indicate:

• the fact that the employee is already familiar with the beginning of the staff reduction procedure. It is imperative to indicate the date when the employer brought the order and notification to the employee’s attention;
• the fact that the employee was offered vacancies available at the enterprise that correspond to his qualifications and work experience;
• the fact that dismissal is the employee’s personal initiative, and he wants to quit early, before the expiration of the required two months;
• the fact that the employee, even in this case, claims all the payments that are due to him by law;

It is necessary to indicate the date from which the employee leaves.

The employer must sign this statement. Thus, he confirms his consent to dismiss the employee under such conditions.

After signing the application, the employer must issue an order stating that it is necessary to “dismiss the employee (full name) early on his initiative ..... (HH. MM. YY).”

The order is recorded in the order journal. It must also be signed by the employee. This indicates that the employee has read the order.

The employer must make a full payment to the employee on the day of his dismissal. If the employer refuses to pay all compensation benefits, the employee has the right to seek protection of his rights in labor inspection, to the prosecutor's office or to the court.

If the decision is made in favor of the employee, the employer will have to pay the employee all payments required by law, as well as compensate legal costs and compensate for moral and material damage.

To reinsure yourself, you can draw up a written agreement on early dismissal, which clearly indicates the amount of all compensation payments and the procedure for their provision.

Such an agreement must be drawn up in 2 copies and signed by both parties.

At certain conditions You can apply for early dismissal due to reduction. Let's look at how to do this correctly to avoid a legal dispute.

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

Under what conditions can you apply? early dismissal

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

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

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

It is necessary to take into account the preferential right of employees to remain at work, to offer vacancies to those being dismissed (part three of Article 81, Article 179, part one of Article 180 of the Labor Code of the Russian Federation).

Employee consent. The employee must give written consent to early dismissal. This may be an inscription on a notice or a separate document. To prevent the employee from making mistakes, offer to write a statement indicating the grounds for dismissal, details of the notice of reduction and the date on which he agrees to resign early (sample below).

Consent to early dismissal

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

The law does not prohibit an employee from revoking consent to early dismissal. However, the employer is not obliged to follow his lead. Revocation of consent is not significant, since the employee is dismissed due to staff reduction, and not at his own request.

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

Sometimes the employee himself demands to be fired early. If we interpret the Labor Code literally, the employer is not obliged to do this (part three of Article 180 of the Labor Code of the Russian Federation). Until the notice period for layoffs has expired, the employee has the right to resign at his own request (Clause 3, Part 1, Article 77 of the Labor Code of the Russian Federation). But then he will lose the right to severance pay and average earnings for the period of employment (Articles 178, 180 of the Labor Code of the Russian Federation).

Therefore, this situation will inevitably lead to conflict and litigation. Therefore, we recommend that you agree to dismiss an employee early due to layoffs if such an initiative comes from him.

How to issue a dismissal order

The dismissal order is drawn up using unified form No. T-8 or another developed by the organization (sample below). The employment contract is terminated under paragraph 2 of part one of Article 81 Labor Code. The basis documents include a notice of upcoming dismissal due to staff reduction, a written consent (application) of the employee for early dismissal.

* Click on the image to enlarge

What payments are due to an employee in case of early dismissal?

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

A laid-off employee retains his 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 maintained for the third month from the date of dismissal.

The decision on this is made by the employment service. In practice, the question arises from what date, in the event of early dismissal, to calculate the period of employment for which the employee is entitled to an average monthly salary. After all, the date of dismissal differs from that indicated in the notice. As follows from the Labor Code, this period is calculated from the actual day of dismissal, and not from the date established in the notification (Article 178 of the Labor Code of the Russian Federation).

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

Example:

On September 14, 2016, accountant Olga M. was given notice of dismissal due to staff reduction on November 15, 2016. The employee agreed to early dismissal on October 3, 2016. The average daily earnings is 1138 rubles. Olga works according to a five-day calendar working week. Therefore, additional compensation must be calculated 30 working days in advance.

The amount of compensation will be 34,140 rubles. (RUB 1,138 × 30 days).

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

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

The work book is filled out in accordance with the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 and the Instructions approved by Decree of the Ministry of Labor of Russia of October 10, 2003 No. 69.

The entry in the work book of an employee dismissed early due to staff reduction will not differ from the entries in the work book of employees dismissed on the same basis within the period specified in the notice (sample below).

Sample of a work book

* Click on the image to enlarge

The entry in the employee’s personal card will also be standard (sample below). The work book and personal card do not include information that the dismissal was early.

Entry in personal card

* Click on the image to enlarge

Staff reduction is a complex and multi-stage process that must be carried out in accordance with the requirements and conditions of the Labor Code of the Russian Federation. Each organization independently determines its structure and staffing, so staffing changes can be made up to four times a year if required by the boss. However, employees have their rights, including early dismissal at the request of the employee.

Early layoff at the request of the employee is not prohibited in the Labor Code of the Russian Federation

Let's consider the following questions about removing an employee from a position when changing the staffing table:

1. Conditions for dismissal in case of staff reduction.
2. Dismissal at your own request.
3. Completing an application is your guarantee.
4. Retirement due to staff reduction.
5. Conditions for termination of the employment contract and payments.

Conditions for dismissal in case of staff reduction

If the decision to reduce the number of employees or staff has already been made, the organization is subject to liquidation vacant positions, after which there is a reduction in the number of employees.

Many employees of the organization who are to be fired may be subject to reduction, but some of them are protected by law (pregnant women, women with children under three years of age, employees with disabled minors, single mothers or single fathers with children under 14 years of age). Reduction is allowed only if the employee does not have preemptive right remain in office.

After candidates for dismissal have been selected, the employer is obliged to notify each person in writing about upcoming reduction. This must be done two months before the official termination of the employment contract. Sometimes it is possible to carry out early layoffs at the initiative of the employee. This procedure has its own characteristics.

Dismissal at your own request

According to Article 81, paragraph 2 of the first part of the Labor Code, when the number of employees is reduced, dismissal is allowed no earlier than 2 months from the time of written notification. However, sometimes there are cases when an employee wants to terminate the employment contract before the appointed date because he has found a new job and does not want to lose this opportunity.

Early dismissal of one's own free will is possible during layoffs. In this case, the employee will be dismissed as with a regular application “at his own request”.

But this affects the calculation of the following payments:

• severance pay)
• payment of average earnings during unemployment)
• compensation.

An employer has no right to prevent an employee from resigning. In turn, the employee has the right to submit an application for termination of the employment contract at any time. Still, there is a certain risk in this method of dismissal: the employee cannot count on the benefits provided to him under Article 81 of the Labor Code, Part 2 of Article 1. Thus, voluntary dismissal during a reduction is fraught with the lack of severance pay.

• remember that termination of the contract is not mandatory until the period stipulated by the staff reduction has expired)
• the initiative to terminate the contract from a legal point of view is assigned to the boss, and the subordinate can only agree with him or not)
• the employee may initiate the termination of the contract and hope to receive all the payments provided for in Article 180.

Completing an application is your guarantee

Dismissal of one's own free will during layoff deprives one of the right to certain payments.

Competently drafting a resignation letter plays a huge role. If early layoff at the request of the employee sounds like dismissal, then it will be calculated in accordance with Article 77 of the Labor Code, first part, paragraph three. Thus, the employee is deprived of all compensation and benefits provided to him when he is laid off. For this reason, the subordinate must be able to correctly express the essence of the statement. This will avoid litigation and other unpleasant moments.

The text may be something like this: “On September 10, 2013, I, against signature, familiarized myself with the notice of being laid off on November 10, 2013 and of my dismissal on this occasion no later than the appointed date. In this regard, I ask you to dismiss me on September 12, 2013 before the expiration of the period specified in the notice of dismissal in connection with my reduction and to make compensation payments due to me." In this case, dismissal can only be made with the consent of the employer.

Therefore, the employee’s desire to resign early must be expressed in writing. As often happens, during a period of mass layoffs, the employer is interested in dismissing employees at their “own request,” since in this case they will not have to pay compensation.

For this reason, various methods of psychological pressure on an employee can be used. Very often, an employee cannot stand it and resigns of his own free will, and then goes to court to clarify the wording of the application and to recover the due payments in case of early dismissal, claiming that his boss forced him to write such a statement. But the responsibility to prove this fact lies with the employee.

During the trial, the reasons that prompted the employee to write a statement are examined. In this case, the circumstances and true intentions of the employee are taken into account. When considering a claim, it is mandatory to study the text of the application and the indications in it of the mandatory details (date of writing, signature, date of receipt of the application by the boss, resolution).

If the employee is able to prove in court that the resignation letter was not “of his own free will,” that is, written under pressure, the termination of the employment contract will be considered illegal. Therefore, it is advisable for the boss to terminate the contract in such a way as to avoid future litigation.

Retirement due to staff reduction

According to Article 81 of the Labor Code of the Russian Federation, part one of the second paragraph, it follows that the contract can be terminated by the employer if the staff or number of subordinates is reduced. However, employees who have reached pre-retirement age and whose employment contract was terminated as a result of layoffs have certain guarantees:

1. Citizens who have not reached retirement age and have 25-20 years of insurance experience and compulsory length of service, which gives the right to early assignment of an old-age pension, have the following benefits: mandatory monthly payments of benefits in connection with temporary unemployment during the year. At the same time, the period for paying unemployment benefits should be increased, and in addition to the mandatory 12 months, two more weeks will be accrued for each year of work exceeding the insurance period.
2. The employment service may offer a pension for the period before retirement age, in accordance with Article 32 of the Employment Law.
3. Upon reaching retirement age, a citizen has the right to be transferred to a pension.

Thus, early retirement due to layoffs is not such a problem.

Conditions for termination of the employment contract and payments

Dismissal of one's own free will during a layoff may result in a lack of severance pay.

After the new one came out staffing table, and employees have been notified of the upcoming reduction and dismissal, two months must pass before the settlement of employees occurs. Simultaneously with the written notice of dismissal, the boss must offer a transfer or notify that the transfer is impossible due to the lack of vacancies.

Next, the employer is obliged to notify the trade union committee. To do this, he sends an example of an order and receives a response within a week. The employer must also provide the employee with the opportunity to look for a new job. To do this, he can provide additional time and free the person from work for three hours a week.

After two months, the employee is dismissed and all mandatory compensation is paid to him. Also issued against signature employment history employee and a corresponding note is made in the registration log. The employee is considered officially dismissed, and his file is transferred to the organization’s archives.