The process of dismissal reduction in itself is a certain negative for the employee. It happens that giving the enterprise for more than one year from his life, a person deprives him of his position. The reason for this is the reduction of the state of the organization. The emergence of such a situation workers are usually worse and wish to avoid it. For the employer, this process requires great responsibility and competence, as it should occur in accordance with the law, observing all its rights.

If the reduction of the worker is still foreseen, then there is an option that mitigating all the troubles of this procedure is its early dismissal, Those termination of the contract without waiting for the moment of direct reduction. How to start and finish the process of dismissal reduction ahead of schedule in accordance with the law? Consider this further.

Early termination of the contract

Based on the student outlined in the Labor Code, the employer has the opportunity to dismiss the worker before the occurrence of the reduction period, that is, before the expiration of two months. Article 180 Part 5 brings that who accepted to work has the right to terminate the employment contract, having received the consent of the employee in a written form.

For dismissal in early procedure, the interest of both parties is needed - both the employer and the employee. The interest of the employer prevails, as he decides - to go to him in such a way, or not.

An employee who wished to terminate the contract with the employer early to know that the guarantee of the success of the further process of dismissal and financial calculation with it depends on the correctness of the statement written. The application formulation must be a clear, eliminating the double meaning of the subject: it is to reduce the state, and not on its own initiative, since the calculation of payouts for dismissal is made according to various relevant articles.

The written statement, the dismissed should indicate that it was informed of its reduction, to designate the date of the onset of this period, list the vacancies offered to him (if it took place). The main thing is to focus on the fact that it wants to terminate the contract before the moment of reduction. It is also important to voice what he expects payments to rely on this occasion.

The dismissal of the worker in early order is possible only with the consent of the management of the organization. If it is received, the employee is relying payments, taking into account the fact that the termination of the contract occurred early.

Payments

Employee's dismissal before the appropriation period for the employer is fraught with financial costs - it is necessary to compensate for He is premature termination of the contract.

Payments that the employer is obliged to appoint an employee to be dismissed early when reducing the state:

• earned fee for the working days of the month in which there was dismissal;
• monetary compensation for unused vacation;
• compensation, equal to the size of the employee's earnings on average, the calculation of which is proportional to the remaining days before the expiration of the reduction warning period;
• allowance for exit, equal to the average earnings of the dismissed;
• earnings on average in two months, counting from the date of dismissal.

Often such situations occur when dismissed at their own The employee addresses the court with a statement that he asks to reformulate the reason for his dismissal, Namely to the "early dismissal to reduce the state", and appoint payments to him. It can be justified with the provision of pressure from the leadership at the time of submitting the statement.

About payments with early state reduction to the state is also referred to in the video below. Happy viewing!

Officer's appeal

First of all, the plaintiff, and in this case the former worker should know that it is obliged to prove pressure, from his words rendered to him.

Court's actions:

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 true intentions of the employee.
4. Studying the text of the statement, the presence of requisites required - dates, signatures, conclusion of the manual for this application.

If a dismissed employee proves to prove that the writing of the application took place under pressure from the leadership, That terminated agreement will be recognized outside the law. The court will oblige the employer to rephrase, as well as impose obligations to pay all renewing benefits, as well as compensation for moral damage, and legal costs. It is possible that the court can oblige the employer to restore the worker in office.

I read about the illegal dismissal of the employee, and the legal consequences of such termination of the employment contract told.

Both the employer and the employee should be interested in peaceful resolution in connection with the reduction of the situation. This is achievable by the employer by complying with the rules and rules in the process of dismissal, without violating the rights of reduced employees.

The current legal regulation carefully provides for the basis and procedure for termination of an employment agreement.

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One of the similar reason is the reduction in the number of employees. And how is early dismissal when cutting?

Terms of termination of the employment contract

Of course, the employer may decide to reduce the state, but the employee is also endowed with certain rights.

First of all, it is necessary to know that to begin with this procedure requires the adoption of the appropriate decision of the authorized body.

Only after that it can be proceeded to terminate employment contracts.

It is necessary to know that certain categories of citizens cannot be reduced (for example, pregnant and women who are on maternity decrees, minor citizens, etc.).

Also, the employer must notify employees to terminate the employment agreement at least in 2 months. This is a mandatory requirement.

If necessary, he must provide an employee time during the working day to search for new work.

The legislative framework

The termination of the employment agreement on this basis is provided for in.

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

Early dismissal

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

It must include the following information:

• employer data;
• employee data;
• the number and date of the conclusion of an employment agreement;
• request for termination of this agreement;
• date of termination of the contract.

At the end, the employee must put his signature from specifying the date of the document.

Registration of the order

After receiving the application of the employee, the employer must fulfill certain actions. In particular, it is necessary to accept and sign the appropriate.

This is an internal document of a particular enterprise, which approves the fact of termination of labor legal relations and on the basis of which the agreement is terminated, concluded with the employee.

The order must include the following information:

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

The order is compiled by the personnel of the enterprise and signed by his head. The law states that this document must be provided by an employee for familiarization.

After that, the employee puts his signature on the revolving side of the document: This suggests that he was familiar with the content of this document.

Writing in labor

After termination of the employment agreement, relevant information should be recorded in the employee's employment record.

It is necessary to fix the date of termination of work at this enterprise, as well as the basis of termination of the Agreement.

In the appropriate field, the signature of the authorized employee must be put, as well as the printing of the enterprise, if such, of course, is available.

Payments

Many employees who face dismissal due to contractions in the company, are interested in the question of which they can get, because for this category of employees, certain additional guarantees are provided.

Is the day off allowance?

When dismissal on this basis, the size of the output benefit 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 a notification of the reduction, but preferred to present an appropriate application and terminate the contract on his own initiative, then in this case the output allowance is not paid.

Accordingly, in this case the record has been crucial, which was made in the employee's employment record.

Compensation for unused vacation

If an employee has the days of unused vacation, then he must receive monetary compensation for them when working out labor relations. This is a mandatory legislative requirement.

At the same time, for each unused day, he receives his middle day earnings.

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

Controversial questions

In practice, various controversial situations are very often arising. Basically, many disputes with reducing arise in cases where the employer does not comply with the deadlines provided for for the alerts of employees.

This question received its clear legislative regulation: for each day the delay, the employer must pay monetary compensation.

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

The following controversial moment is associated with the fact that the employer does not offer an employee of a suitable work suitable for him. And the law states that he is obliged to offer such a job, if such, of course, is available.

In practice, many employees impose a claim in court and argue that the employer could provide them with another work that they were not proposed.

The law does not prohibit the early dismissal of the employee while reducing the state at the initiative of the employee. This gives an employee the opportunity as quickly as possible to start searching for new work..

The procedure for dismissal to reduce the state is quite complex and "paper". First, the employer must publish an order to reduce the state. This is not an order of dismissal on some reason, this is an order about the start of measures to reduce.

The order indicates which positions fall under reduction.

Then each employee who falls under the reduction is needed in writing to notify. The employee signs the notice, thereby showing that he got acquainted with him. Notify the employee needs at least 2 months. This suggests that the employee will work for about 2 months, and then fired. But there is early dismissal when reducing the state, which means that the employee is dismissed before the expiration of 2 months. But how to do it right to get all the allowed payments?

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

• salary for all actually spent working shifts or days in that month in which the employee will write a statement;
• compensation for non-glured vacation;
• output allowance in the amount of one average earnings of this employee for the month;
• manual for the time of employment of a reduced employee. By law, the employer must pay only 2 months of employment in the amount of the average earnings of this employee for each month;
• if the worker rose into the employment center for 2 weeks after the reduction, but could not work out for 2 months, the employer must pay another average earnings.
• if there is early dismissal to reduce the initiative of the employee, the employer must pay another allowance that is calculated in proportion to the working days remaining before reducing.

In order not to lose all the above payments due to the unscrupulousness of the employer, it is necessary to quit it right.

Once the employee is dismissed on his own initiative, he must write a statement on his own request. To "correctly" quit early when reducing the state, you need to write a statement correctly.

The statement must be specified:

• the fact that the employee is already familiar with the beginning of the state reduction procedure. Be sure to specify the date when the employer brought an order to the employee and notice;
• the fact that the employee was offered the vacancies available at the enterprise, which correspond to his qualifications and work experience;
• the fact that dismissal is a personal employee initiative, and he wants to quit early, before the expiration of the last two months;
• the fact that the worker even in this case claims all the payments that are put on him by law;

Be sure to specify the date with which the employee is dismissed.

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

After signing the application, the employer must issue an order in which it will be indicated that it is necessary to "dismiss the employee (FULL NAME) ahead of schedule on its initiative ... .. (HF. Mm. Gg)."

The order is registered in the journal of orders. It must also be signed by the employee. This suggests that the worker familiarized himself with the order.

The employer must make a full calculation with an employee on his dismissal day. If the employer evade the payment of all compensation benefits, the employee has the right to apply for the protection of his rights to the employment inspection, in the prosecutor's office or to court.

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

To reinsurance yourself, you can make a written agreement on early dismissal, where exactly the size of all compensation payments and the procedure for their provision.

Such an agreement must be made in 2 copies and sign up to both parties.

Under certain conditions, one can arrange early dismissal to reduce. Consider how to do it correct to avoid a litigation.

The staff reduction remains at the employers the most popular measure to optimize costs. As a general rule, the upcoming dismissal on this basis, employees are presented personally and under the painting at least two months (paragraph 2 of h. The first Art. 81, part of the second Art. 180 of the Labor Code of the Russian Federation).

Under what conditions can be issuedearly dismissal

In the text of the dismissal notification or in another document, the employer has the right to offer an employee to terminate the employment contract before the two-month warning period (third part of Article 180 of the Labor Code of the Russian Federation) is expired. It is possible to dismiss ahead of time if two conditions are observed:

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

The legality of the reduction. The Labor Code regulates in detail how to reduce. Thus, the decision to reduce the staff should notify the employment service and the trade union (if available) no later than two months, and if mass dismissal is planned - no later than three months before the termination of employment contracts (h. The first Art. 82 of the Labor Code of the Russian Federation, Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1, the definition 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 the vacancies dismissed (Part. Third Art. 81, Art. 179, h. The first Article 180 of the Labor Code of the Russian Federation).

The consent of the employee. The employee must give written consent to early dismissal. This may be an inscription on a notification or a separate document. In order for an employee to not allow mistakes, propose to write a statement, pointing out the basis of dismissal, details of the reduction notice and the date, in which he agrees to quit early (sample below).

Consent to early dismissal

If the employee does not specify the date or base of dismissal, the court has the right to recognize the termination of the employment contract illegal (the appeal definition of the Moscow City Court of June 2, 2016 in case No. 33-14856 / 2016).

The law does not prohibit the employee to withdraw consent to early dismissal. However, the employer is not obliged to go for him. There is no significant agreement with consent, since the staff reduction officer is dismissed, and not on their own request.

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

Sometimes the employee himself requires him to be fired early. If you interpret the Labor Code literally, the employer is not obliged to do this (h. Third Art. 180 Tk RF). So far, the notice of a reduction notice has expired, the employee has the right to quit at his own request (paragraph 3 of Part 3 of Art. 77 of the Labor Code of the Russian Federation). But then he will lose the right to the weekend and average earnings for the period of employment (Art. 178, 180 of the Labor Code of the Russian Federation).

Thus, this situation will inevitably lead to conflict and judicial dispute. Therefore, we recommend that you agree to dismiss the employee to reduce the emergence when such an initiative comes from it.

How to place an order about dismissal

The layout of the dismissal is drawn up according to a unified form No. T-8 or other developed in the organization (sample below). The employment contract is divorced under paragraph 2 of the first part of Article 81 of the Labor Code. As documents - grounds indicate a notice of the upcoming dismissal to reduce staff, written agreement (statement) of an employee for early dismissal.

* Click on the picture to enlarge

What payments are made an employee in early reducing

On the day of dismissal, the employee pays the final settlement (Art. 84.1, 140 of the Labor Code of the Russian Federation). It includes salary, compensation for unused vacation, output allowance in the amount of average monthly earnings.

The abbreviated employee retains the average monthly earnings for the period of employment, but not over two months from the date of dismissal (with a testing of the day off). In exceptional cases, the average monthly earnings remain over the third month from the date of dismissal.

The decision about this takes the employment service. In practice, there is a question from which date in case of early reducing the period of employment, for which the employee is laid by the average monthly earnings. After all, the date of dismissal differs from the notification indicated in the notification. As follows from the Labor Code, this period is calculated from the actual dismissal day, and not from the date set in the notification (Article 178 of the Labor Code of the Russian Federation).

In addition to the listed payments, an additional compensation is allowed for the early dismissal. It is calculated from the average earnings in proportion to the time remaining until the end of the warning period about the dismissal (formula below). To calculate the average day earnings, the order established by the Decree of the Government of the Russian Federation of December 24, 2007 No. 922.

Example:

Accountant Olga M. September 14, 2016 was awarded a notice of dismissal to reduce state on November 15, 2016. The worker agreed to early dismissal on October 3, 2016. Middle day earnings is 1138 rubles. Olga works on the calendar of the five-day working week. Thus, additional compensation must be calculated in 30 business days.

Compensation size will be 34,140 rubles. (1138 rubles. × 30 days.).

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

How to enter an employment record and personal card

The labor book is fill in accordance with the rules for the conduct and storage of labor books, approved by the Decree of the Government of the Russian Federation of April 16, 2003 No. 225 and the instructions approved by the Resolution of the Ministry of Labor of Russia of October 10, 2003 No. 69.

The employment record of the employee dismissed to reduce the state early will not differ from records of employees who were dismissed on the same basis on the term provided for by the notice (sample below).

Workbook design sample

* Click on the picture to enlarge

The standard will be recorded in the employee's personal card (sample below). In the employment record and personal card do not make information that dismissal was early.

Personal Card

* Click on the picture to enlarge

The reduction of the state is a complex and multi-step process, which should be carried out according to the prescriptions and conditions of the Labor Code of the Russian Federation. Each organization independently defines the structure and states, so the change in the standard schedule can be carried out to four times a year, if this requires the boss. However, employees have their own rights, including an early reduction at the request of the employee.

Early reduction at the request of the employee is not prohibited in the TC RF

Let's consider the following questions on the removal of the employee from office when changing the staffing schedule:

1. Conditions for dismissal while reducing the state.
2. Dismissal at your own request.
3. Drawing up the application is your guarantee.
4. Retirement retirement.
5. Terms of termination of the employment contract and payment.

Conditions for dismissal while reducing staff

If the decision to reduce the number of employees or staff is already adopted, vacant positions fall into the organization under elimination, after which the number of employees is reduced.

The reduction can be subject to many employees of the organization, which will be dismissed, but some of them are protected by law (pregnant women with children up to three years old, workers with juvenile disabled children, single mother or lonely fathers with children under 14 years old). The reduction is allowed only if the employee does not have a preferential right to remain in position.

After candidates for dismissal were selected, the employer is obliged to inform everyone about the upcoming reduction. Make it need two months before the official termination of the employment contract. Sometimes it is possible to conduct an early reduction on the initiative of the employee. This procedure has its own characteristics.

Dismissal

According to Article 81, paragraph 2 of the first part of the TC, with a reduction in the number of employees, the dismissal is allowed not earlier than in 2 months since the written notice. However, sometimes there are cases when an employee wants to terminate the employment contract before the appointed period, since he found a new job and does not want to lose this opportunity.

Early dismissal at their own desire in reducing is possible. In this case, the employee will be dismissed as an ordinary statement "at its own request."

But this affects the calculation of the following payments:

• output allowance)
• payment of medium earnings during unemployment)
• excellent.

The employer has no right to impede an employee in dismissal. In turn, the employee has the right to apply for the request of the termination of the employment contract at any time. Nevertheless, there is a risk in such a way of dismissal: the employee cannot count on the benefits provided by it under Article 81 of the TC, part 2 of Article 1. Thus, the dismissal of the existence of an output benefit is fraught with the absence of an output manual.

• remember that the termination of the contract is not obligatory until the term provided for by the state reduction)
• the initiative of termination of the contract from a legal point of view is assigned to the boss, and the subordinate remains only to agree with it or not)
• the worker can act as the initiator of the contract break and hope to provide all the calculations provided for in Article 180.

Preparation of the application - Your Warranty

Dismissal at your own decline deprives the right to certain payments

Competent compilation of a declaration of dismissal plays a huge role. If an early reduction at the request of an employee sounds like a dismissal, then it is calculated according to 77 Article TC, the first part, paragraph three. Thus, the employee is deprived of all compensation and benefits provided to him if it is reduced. For this reason, the subordinate should be able to properly state the essence of the statement. This will avoid trial and other unpleasant moments.

The text may be approximately like this: "On September 10, 2013, I got acquainted with the notice of hugging on November 10, 2013 and about my dismissal about this no later than the appointed date. In this regard, I ask me to dismiss me on September 12, 2013. Before the expiration of the period specified in the prevention of dismissal due to my reduction and make compensatory payments to me. " In this case, dismissal can only be made by the consent of the employer.

Therefore, the employee's desire to quit early should be expressed in writing. As often happens, during the period of massive contractions, the employer is interested in dismissing employees by their "own willing", since in this case it is not necessary to pay compensation.

For this reason, different methods of psychological pressure on the employee can be applied. Very often, the employee does not stand and dismissed at his own request, and after turns to court to clarify the formulation of the application and recover made payments in early reducing, arguing that the boss made him write such a statement. But the duty to prove this fact is on the employee.

During the trial, the reasons that prompted the employee will write a statement. At the same time, the circumstances and the true intentions of the employee are taken into account. Be sure to consider the claim, the text of the application and the indication of mandatory details (writing the date, signature, the date of receipt of the application by the head, resolution) is studied.

If the employee is able to prove in court that the application for the dismissal was not "at his own desire", that is, it is written under pressure - the termination of the labor contract will be considered illegal. Therefore, it is advisable to terminate the boss in such a way as to avoid legal proceedings.

Retirement

According to Article 81 of the Labor Code of the Russian Federation, the part of the first second item follows that the contract can be terminated by the employer while reducing the state or number of subordinates. Nevertheless, employees who have reached pre-mentioning age, the employment contract with which was terminated as a result of the reduction, have certain guarantees:

1. Citizens who have not reached the retirement age and having an insurance experience of 25-20 years old and the mandatory experience, giving the right to early with old age pensions, have such benefits: mandatory monthly payments for temporary unemployment during the year. At the same time, the period of unemployment benefits should be increased, and above the required 12 months will be accrued for another two weeks for each year of work exceeding the insurance experience.
2. Employment service can offer the appointment of pension for the period before the retirement age, according to 32 Employment Act.
3. Upon reaching the retirement age, a citizen has the right to be retired.

Thus, care for early retirement in connection with the reduction is not such a problem.

Terms of termination of the employment contract and payment

The dismissal of one's own desire is fraught with the absence of an output benefit.

After the new staff schedule came out, and employees were notified about the upcoming reduction and dismissal, should pass two months before the settlement of employees occurs. Simultaneously with the written notice of dismissal, the boss must offer the translation or notify the impossibility of translating due to the absence of vacancies.

Next, the employer is obliged to notify the trade union committee. To do this, he sends an example of the order and receives an answer within a week. Also, the employer must provide an employee with the ability to search for new work. To do this, he can provide extra time, and free a person from work for three hours a week.

After two months, the employee's dismissal and payment of all mandatory compensation takes place. Also, the painting is issued an employee's labor book and a corresponding mark is made in the registration journal. The employee is considered officially dismissed, and his case is transferred to the archive of the organization.