In what cases is compensation paid for reduction. What payments should the employer make in case of redundancy? Reduction of employees who have reached retirement age

Currently, in many institutions under the jurisdiction of the Ministry of Culture, measures are being taken to reduce staff and (or) the number of personnel. We will describe in the article what guarantees and compensations employees are entitled to when carrying out such events and how to correctly carry out the procedure for the final settlement with employees.

Dismissal in connection with a reduction in staff and (or) the number of personnel refers to dismissal at the initiative of the employer (clause 2 of part 1 of article 81 of the Labor Code of the Russian Federation).

The procedure for reducing the staff (number) involves the implementation of measures determined by the Labor Code of the Russian Federation and other regulatory documents, as well as the provision of a number of guarantees and compensations to employees (see table).

Average earnings for calculating compensation payments

Compensation payments for dismissal to reduce the staff (number) of personnel are calculated based on the average salary, the calculation of which is regulated by Art. 139 of the Labor Code of the Russian Federation and the Regulation on the specifics of the procedure for calculating the average wage, approved by the Resolution of the Government of the Russian Federation of 12.24.2007 N 922 (hereinafter - Regulation N 922).

In any mode of work, the average wage of an employee is calculated on the basis of the actually accrued wages and the hours actually worked by him for 12 calendar months preceding the period during which the employee retains the average wage. In this case, a calendar month is considered the period from the 1st to the 30th (31st) day of the corresponding month, inclusive (in February - to the 28th (29th) day inclusive).

When calculating average earnings, all the types of payments provided for by the wage system applied by the respective employer, regardless of the sources of these payments, in particular (clause 2 of Regulation N 922):

1) wages accrued to the employee:

- at tariff rates, salaries (official salaries) for hours worked;

- for the work performed at piece rates;

- for the work performed as a percentage of the proceeds from the sale of products (performance of work, provision of services), or commission;

2) the remuneration of employees who are on the payroll of these editorial offices and organizations, and (or) remuneration for their labor, calculated at the editorial offices of the media and art organizations, carried out at the rates (rates) of the author's (staging) remuneration;

3) wages issued in non-cash form;

4) wages, finally calculated at the end of the calendar year preceding the event, due to the wage system, regardless of the time of calculation;

5) allowances and surcharges to tariff rates, salaries (salaries) for professional skill, class, length of service (work experience), knowledge of a foreign language, work with information constituting a state secret, combining professions (positions), expanding service areas, increasing volume of work performed, team leadership, etc .;

6) bonuses and remuneration provided by the remuneration system;

7) payments related to working conditions, including payments due to regional regulation of remuneration (in the form of coefficients and percentage allowances to wages), increased remuneration for heavy work, work with harmful and (or) dangerous and other special conditions labor, for work at night, pay for work on weekends and non-working holidays, pay for overtime work;

8) other types of salary payments applied by the respective employer.

When calculating average earnings, do not take into account social payments and other payments not related to remuneration, in particular (clause 3 of Regulation N 922):

- material assistance (at birth, adoption (adoption) of a child, in connection with retirement due to disability or age, in connection with the death of a member (members) of the employee's family, etc.);

- the cost of food, travel, training;

- the cost of spa treatment;

- compensation for utility bills.

When calculating the average earnings, it is excluded from the accounting period time, as well as amounts accrued during this time, if (clause 5 of Regulation N 922):

- the employee retained the average earnings in accordance with the legislation of the Russian Federation, with the exception of breaks for feeding the child, provided for by the labor legislation of the Russian Federation;

- the employee received a temporary disability allowance or maternity allowance;

- the employee did not work due to downtime due to the fault of the employer or for reasons beyond the control of the employer and the employee;

- the employee did not participate in the strike, but due to this strike he was not able to do his job;

- the employee was provided with additional paid days off to take care of disabled children and those disabled from childhood;

- the employee in other cases was released from work with full or partial retention of wages or without payment in accordance with the legislation of the Russian Federation.

To calculate the average earnings of an employee, the following formula is applied (clause 9 of Regulation N 922):

Average earnings \u003d Average daily earnings x Number of days (calendar, work) in the period payable.

1. Average daily earnings for calculating unused vacation compensation is defined as follows:

A) if the billing period has been worked out by the employee in full:

Average daily earnings \u003d Salary for the billing period / 12 months. / 29.3 cal. days;

B) if the calculation period was not fully worked by the employee or time was excluded from it in accordance with clause 5 of Regulation N 922:

Average daily earnings \u003d Salary for the billing period / ((29.3 cal. Days x Number of fully worked calendar months in the billing period) + Number of calendar days in incompletely worked calendar months (calendar month)),

Number of calendar days in an incomplete calendar month \u003d 29.3 cal. days / The number of calendar days of this month x The number of calendar days falling on the time worked in this month.

2. Average daily earnings for calculating other compensation payments, which are due to the employee in case of reduction, is calculated as follows:

Average daily earnings \u003d Wages for days worked in the billing period / The number of days actually worked during this period.

Procedure for calculating redundancy payments

Wage. Wages in case of redundancy are calculated in the usual manner in proportion to the time worked in the month of dismissal, taking into account all additional payments and allowances.

Compensation for unused vacation. As noted above, the calculation of this compensation should be based on the employee's average daily earnings and the number of days of unused vacation.

When determining the number of days of unused leave, it is necessary to be guided not only by the provisions of the Labor Code of the Russian Federation, but also by the Rules on regular and additional vacations, approved by the NKT of the USSR on April 30, 1930 N 169, in the part that does not contradict the Labor Code of the Russian Federation, Letter of the Ministry of Health and Social Development of Russia dated December 7, 2005 N 4334- 17 as well as Recommendations<1>, Letters<2> Rostrud. Let's highlight the main points to which you should pay attention:

- every employee who has worked in the institution for at least 5.5 months has the right to receive another vacation;

- regular leave is granted once a working year;

- the right to the next regular vacation on account of the new working year arises from the employee after 5.5 months from the date of the end of the previous working year;

- An employee who has worked a full year is entitled to full compensation for unused vacation. In this case, the full working year is calculated from the date of the employee's hiring and is equal to the calendar year (12 months);

- an employee who has worked in an institution for more than one year and who is dismissed due to a reduction in staff is entitled to receive full compensation for unused leave for the last working year, provided that he has 5.5 or more months of work experience during this period, giving the right to leave;

- if the working year has not been fully worked, the vacation days for which compensation must be paid are calculated in proportion to the months worked. In this case, surpluses of less than half a month are excluded from the calculation, and surpluses of at least half a month are rounded up to a full month;

- proportional compensation for unused vacation is calculated based on the calculation of 2.33 vacation days per month;

- rounding of the number of calendar days of unused vacation to whole days should be done not according to the rules of arithmetic, but in favor of the employee.

Severance pay. The calculation of the severance pay is made based on the average daily earnings of the employee and the number of working days according to the work schedule in the month following the day of his dismissal (Article 178 of the Labor Code of the Russian Federation).

Since the course of the terms associated with the termination of the employment relationship begins the day after the calendar date that determines the end of the employment relationship, the counting of the number of days to be paid must be started from the day following the day of dismissal (Article 14 of the Labor Code of the Russian Federation). For example, an employee was fired on November 14th. The number of days payable should be counted from November 15 to December 14.

Average monthly earnings for the period of employment. The average monthly earnings are retained by the employee from the day following the day of dismissal (Article 14 of the Labor Code of the Russian Federation). Payments are terminated on the day preceding the day of employment, or on the day of the expiration of a two-month (three-month - for "northerners") period from the date of dismissal. For the first month of maintaining the average earnings for the period of employment, the employee receives a severance pay, therefore, the payment for the second month of the employment period is calculated taking into account the severance pay (Article 178 of the Labor Code of the Russian Federation).

Additional compensation in the amount of average earnings. This compensation is paid on an equal basis with other payments that are due to the employee to reduce the state (number) of personnel. The amount of additional compensation for early termination of labor relations depends on the time between the actual date of termination of the employment contract and the date of dismissal (Article 178 of the Labor Code of the Russian Federation).

The counting of the number of working days to be paid starts from the day following the day of termination of the employment contract and ends on the day of dismissal, which is indicated in the notice of staff reduction (number) (Article 14 of the Labor Code of the Russian Federation).

Example. An employee of a cultural institution received a notice of the upcoming dismissal on 10/17/2014 due to staff reduction. The official salary of the employee is 20,000 rubles, the work schedule is a 40-hour working week.

For the billing period (from 01.10.2013 to 30.09.2014), which was fully worked out, the following payments were made in favor of the employee:

- salary - 240,000 rubles;

- material assistance in connection with the death of a family member - 5,000 rubles.

In addition to the basic payments that are required for the reduction of staff, the employee must be paid compensation for 28 cal. days She got a new job on November 24, 2014.

Let's calculate the payments that are due to the employee in connection with the dismissal due to staff reductions.

1. Salary from 01.10.2014 to 17.10.2014 will be 11,304.35 rubles. (20,000 / 23 working days x 13 working days).

2. Compensation for unused vacation will be calculated as follows.

Average daily wages will be 682.59 rubles. (240,000 rubles / 12 months / 29.3 cal. Days).

A one-time bonus by March 8 and material assistance in connection with the death of a family member are not taken into account when calculating compensation, since they do not apply to wages (clause 3 of Regulation N 922).

Compensation for unused vacation will be equal to 19,112.52 rubles. (682.59 rubles x 28 cal.days).

The billing period (from 10/01/2013 to 09/30/2014) is fully worked out, in it there are 248 work. days (according to the production calendar), so the average daily earnings will be 967.74 rubles. (240,000 rubles / 248 working days).

The paid period is 19 slaves. days (from 18.10.2014 to 17.11.2014).

The amount of the severance pay will be 18,387.06 rubles. (967.74 rubles x 19 working days).

4. Average daily earnings for the period of employment are calculated in the same manner as for calculating severance pay.

For this period, there are 23 workers. days, for 19 of which severance pay was paid, therefore 4 workers are subject to payment. days

Average earnings for the period of employment will amount to 3870.96 rubles. (967.74 rubles x 4 working days).

Personal income tax and insurance premiums from payments to reduce

Personal income tax. Salaries for actually worked hours, which are paid upon dismissal, as well as compensation for unused vacation, are subject to personal income tax on the basis of paragraphs. 6 p. 1 of Art. 208, clause 1 of Art. 209, paragraph 1 of Art. 210 and clause 3 of Art. 217 of the Tax Code of the Russian Federation.

Severance pay, average monthly earnings for the period of employment and compensation for early termination of an employment contract, paid in an amount not exceeding threefold (sixfold - for "northerners") of the average monthly earnings, personal income tax are not taxed (clause 3 of article 217 of the Tax Code of the Russian Federation, Letters of the Ministry of Finance of Russia dated 05.15.2013 N 03-04-05 / 16928, dated 08.07.2013 N 03-04-05 / 26273).

Insurance premiums. Wages for the month of dismissal and compensation for unused vacation are subject to insurance premiums in the Pension Fund of the Russian Federation, FSS and FFOMS, as well as contributions in case of injuries in the general order (part 1 of article 7 of Federal Law N 212-FZ<3>, pp. "D" p. 2 h. 1 tbsp. 9 of the Federal Law N 212-FZ, p. 2 p. 1 art. 20.2 of the Federal Law N 125-FZ<4>).

As for the taxation of insurance premiums on the rest of the compensation payments for the reduction, in 2014 they are not subject to taxation in full, and from 2015 they will be taxed with insurance premiums in terms of exceeding three times the amount (six times for the “northerners”) of the average monthly earnings ( subparagraph "a" paragraph 3 of article 2, subparagraph "a" of paragraph 1 of article 5, article 6 of the Federal Law of 28.06.2014 N 188-FZ).

So, let's highlight the main thing. An employee, upon termination of an employment contract due to a reduction in staff (number), is entitled to the following payments:

- salary for the month of dismissal;

- monetary compensation for all unused vacations;

- severance pay in the amount of average monthly earnings;

- average monthly earnings for the period of employment;

- additional compensation in the amount of average earnings (in case of early termination of the employment contract before the expiration of the two-month warning period).

Of these payments, only wages and compensation for unused vacation are subject to personal income tax and insurance contributions in full. The rest of the compensation payments are not subject to personal income tax and insurance premiums. At the same time, we would like to draw your attention to the fact that in 2015 the amount of payments in the form of severance pay and average monthly earnings for the period of employment will be subject to insurance premiums in the part exceeding three times the overall size (six times for “northerners”) of the average monthly earnings.

Many workers face a situation in which you can be laid off, especially now, when the economic situation in the country is somewhat unstable. From the moment an employee is announced that he will be laid off, he has a lot of questions besides where to look for a new job: are any payments due? If so, how much? What if I am a pensioner or a pregnant woman? How should the dismissal procedure take place?

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Staff optimization

First you need to understand the basic theoretical issues that the reduction procedure affects.

The difference between downsizing and downsizing needs to be clearly understood... So, the number of employees is the entire payroll of employees of a particular enterprise. If we are talking about reducing the number of employees, then the number of employees in a particular position decreases. For example, it is necessary that there are two engineers at the enterprise instead of the ten currently available.

It is customary to refer to the staff of all employees of the managerial and administrative level at a particular enterprise. When reducing staff, the same positions or employees of the entire downsizing division should be excluded from the staffing table. When it comes to the reduction of a certain staffing unit, then not one employee is dismissed, but everyone who, according to the staffing table, performs work in a certain position.

Legislative basis

If the enterprise has a question about the need to reduce the number or staff of employees, then on the basis of 2 clause 1 of part 81 of article of the Labor Code of the Russian Federation, this is the determining factor for early termination of an employment contract with specific employees.

To start the dismissal procedure on this basis, you need to make sure that all actions are carried out within the framework of the law, i.e. the employer is obliged to refer to the fact that the company really needs to make a reduction.

In addition, in accordance with Article 179 of the Labor Code of the Russian Federation, it is necessary to observe the right for some employees (for example, a pregnant woman and those who have higher qualifications) and the sequence of reductions. It is imperative for the employee to be notified of the upcoming layoff, should be provided with alternative vacancies (if any at the enterprise), taking into account his abilities, qualifications and health status.

According to aboutby the definition of the Constitutional Court of the Russian Federation dated 12/18/2007 under the serial number 867, no employer is obliged to justify in any way his decision that he needs to make a reduction. He independently makes decisions that he considers economically beneficial for his enterprise. Third-party organizations, primarily the court, when deciding on the complaint of a dismissed employee, cannot decide whether it was necessary to cut staff. For example, the court is authorized only to resolve the situation about the legality of the dismissal procedure. In practice, there are often cases when in court the employer still has to give reasons for his decision and refer to certain documents of the organization.

Employee layoff payments

In accordance with the current legislation in the field of labor, the employee must be notified of the upcoming layoff at least two months before the day when his actual dismissal occurs. A special order is issued about this, which is announced to the employee against signature, indicating the date of familiarization.

In the event that the employee to be made redundant has familiarized himself with the document, but categorically refuses to sign it, a special document must be drawn up, which reflects this fact.

During the time from familiarization to dismissal, the employee should be offered other vacant positions in accordance with his skills and abilities. If he refuses the proposed options, then after two months the employment contract is terminated. The next step after termination is the final settlement with the employee.

Severance pay

Severance pay, as well as other payments, must be paid to the employee on his last working day. The same time was set for the transfer of the work book.

What is severance pay on dismissal? This is the payment of a certain amount of money to the dismissed employee from the enterprise, which optimizes the number of employees through the reduction procedure.

The severance pay includes the amount of the average monthly earnings, taking into account additional contributions.

Also, the employee is entitled to similar amounts for the next two months after dismissal until the moment of employment (the calculation is made taking into account the amount of severance pay). In exceptional cases, the employee will be paid three months following the dismissal (within 2 weeks from the date of official dismissal, the employee registered at the labor exchange).

The amounts due to the employee as severance pay, on the basis of paragraph 3 of article 217 of the Labor Code of the Russian Federation, are not taxed, except for the case when the amount of payments exceeds the 3-month average earnings.

The calculation of the average earnings due to payments is made on the basis of Article 139 of the Labor Code of the Russian Federation, as well as the Decree of the Government of the Russian Federation, dated 12.24.2007, serial number 922. For the settlement period, 12 calendar months preceding the day of dismissal are taken. When the average amount is displayed, the entire earnings of a person are taken into account based on how much was actually credited to him.

The amount of average earnings must necessarily be taken into account:

1. Bonus and bonus payments, rewards. No more than one type of additional remuneration is taken into account per one month during the calculated period. If there are more bonus amounts, then you can take them into account in the month where they were not;
2. Benefits based on the results of the year, in connection with the length of service, length of service, etc .;
3. Other payments included in the monthly salary.

The main rule of action to withdraw the amount of average earnings: it should not be lower than the subsistence level established in the country on the day of dismissal.

If the employee to be laid off has not worked for 12 months at this enterprise, then the entire period of work must be taken into account when calculating the amount. If the working time did not even make one month, then for the calculation it is necessary to take the amount of its tariff rate or the official salary.

The calculation of average monthly earnings does not take into account the periods:

1. when the employee did not receive the entire amount worked, but only the average wage for his labor (such periods cannot include the time when a woman, in accordance with the Labor Code of the Russian Federation, can leave the workplace to feed a child);
2. sick leave time, as well as social leave provided in connection with the state of pregnancy and childbirth;
3. when the employee was not at the workplace due to circumstances beyond his control;
4. when the strike took place (the employee did not participate, but could not work);
5. additional time provided to a person to care for a disabled child;
6. time when the employee was not at his workplace for any other reason.

The amount of earnings includes all payments from the employer, including bonuses, in-kind products, and other payments.

Compensation

Severance pay is not the only amount a person will receive when they leave. So, he is entitled to some more additional compensation.

For example, if an employee notified according to the rules expresses a desire to leave the enterprise ahead of schedule, then he informs the employer about this, and he, in turn, must calculate an additional amount in the form of compensation for the time that he did not use after the notification. Those. if the dismissed employee after notification has worked 5 days (instead of 2 months) and expressed a desire to be dismissed earlier, he should receive additional compensation in the amount of average earnings for the time not worked before the end of the notification period, in the event that the employer agrees to let him go in advance. Also, be sure to make sure that you get paid for the time you worked in the company, as well as unused vacation (if it really was not used).

Second and third month

If you are laid off for redundancy or redundancy, then know that you have the right to keep your average earnings for the next two months after the day you were officially laid off. This rule is valid until the moment of official employment, but no more than two months after dismissal. Thus, the unemployed has some guarantees provided for him by the state in order to provide him with a certain amount of money until he gets a new job.

If the employee, within two weeks after the dismissal, applied for employment at the Employment Center, then he can count on one extra month of subsidies from the former employer (if he did not find a job).

The decision to extend the term is made by the Employment Center, and the payment is made at the expense of the former employer. This kind of additional allowance remains until the moment the person is officially employed (during these 2-3 months). As soon as a citizen finds a new job, payments stop. If a person started a new job in the middle of the month, then the previous employer will only compensate for the unemployed time.

For pensioners

For persons who have reached retirement age and have been laid off, the Labor Code in 2020 does not provide for any special features of payments.

So, a dismissed pensioner can count on:

1. Severance pay, which is equal to the average monthly earnings. If the employer's local regulatory act provides for a slightly larger amount, then the pensioner must receive exactly this amount.
2. Compensation of average earnings for two (three) months while the search for a new job is in progress.

We remind you that reaching retirement age is not the main criterion for dismissing such employees in the first place.

Legally, they have exactly the same rights to further work or to receive benefits in the event of a layoff, as other employees. In addition, persons who have reached the age of retirement have higher qualifications and productivity, which, on the contrary, can be attributed to a positive moment against the reduction of such an employee.

How to get the?

Registration

Based on the current legislation, all settlements with the employee regarding wages for hours worked and severance pay must be formalized and made on the last day of work of the employee who fell under the downsizing. At the same time, until that day, he must hand over a detour sheet drawn up according to the rules with information that he has no debts to the enterprise.

In order to receive the amounts due in the next two (three) calendar months after the dismissal, it is necessary at the end of the month during which the dismissed employee did not find a new job, contact the former employer for a calculation.

In this case, the employee must confirm his words with documents (provide a certificate from the Employment Center, demonstrate a work book). Only after that, an employee of the settlement department can start processing payments. If such documents are not provided, then no compensation is provided.

Where are they paid?

All payments due to an employee who has been laid off are paid by the employer at the employee's place of previous work.

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

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Procedure order

Dismissal of an employee based on downsizing is a legal procedure for optimizing the number of employees in a particular enterprise. Despite the fact that all the provisions regarding this kind of procedure are spelled out in legislative acts, this is perhaps one of the most "problematic" grounds for terminating a contract that employers face.

Stages

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

1. preparation of the text and publication of a local order of the employer on the need to reduce;
2. notifying employees to be laid off about the upcoming reorganization and offering another job within the company;
3. sending a notice to the trade union organization, as well as to the local employment service;
4. registration of official dismissal of employees.

Issue of an order

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

There is no specific form of publication of such a document, but there are obligatory details that must be present in the text.

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

Employee notification

In order to notify employees that they are eligible for downsizing, it is imperative to meet the deadline for an employee due to the need to find a new job. If you are wondering how many months in advance you must be notified that you are eligible for redundancy, then each employee should already know exactly what he is to be laid off, no later than two months before the day of dismissal.

This kind of notification must be given to the employee in writing and handed over against signature.

In the same notification, the employer is obliged to indicate all the positions available at the enterprise that he can offer to a specific employee (according to Article 180 of the Labor Code of the Russian Federation). When the employee receives such notification, he signs for its receipt, and also notifies the employer whether he is ready to take one of the proposed positions. For the entire time that remains until the day of dismissal, the employer is obliged to inform the persons eligible for redundancy about the new or vacated jobs for which these employees can apply.

Trade union notification

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

In the event that a large-scale dismissal of a large number of employees is imminent at the enterprise in connection with the layoff, the notification must be sent no later than three months.

The same terms are provided for the employment service.

Registration

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

Necessarily, in the basis of dismissal, a reference to 2 clause 1 of part 81 of article of the Labor Code of the Russian Federation must be indicated.

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

Downsizing calculation

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

What payments are due in 2020

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

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

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

How payments are made

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

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

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

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

Persons of retirement age and part-time workers

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

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

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

The only case when such payments are assumed is the loss of the main job by the day when the person is officially recognized as dismissed from the second job where he was a part-time job. As for the severance pay, it must be paid without fail according to the general rules.

Seasonal employees

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

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

At the same time, the employer does not need to pay monetary compensation in the event of unemployment for several months following the dismissal.

How to calculate your severance pay

Of course, you need to trust the data provided by the accountant, but no one canceled human error. Therefore, it would be best to independently double-check the amount due for payment. This is not difficult.

The general formula by which we will make the calculation is as follows:

Amount of severance pay \u003d average earnings of a particular person for one day (shift) * number of days (from the second day after the date of dismissal).

Suppose that a certain citizen named N. received a salary in the amount of 30,000 rubles in the past twelve months before the day of dismissal, which fell in 2020, on March 5. Moreover, over the past year, he worked 220 calendar days.

Thus, over the past year N. received: 30,000 * 12 \u003d 360,000 rubles.

On the day, his earnings were: 360,000 / 220 \u003d 1,636, 36 rubles.

The settlement period taken into account for a citizen of N. is from March 1, 2020 to February 28, 2020.

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

The sum will be: 22 * \u200b\u200b1 636, 36 \u003d 35,999.92 rubles.

Exceptions from the calculation performed

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

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

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

Do not know how to properly formalize the reduction of the staff of employees, but want to fire without consequences? We recommend that you start by studying the regulatory documents that will be needed in the process of preparing for the dismissal of subordinates. The list of required standards is small and is presented in the table.

Step-by-step instructions on how to properly cut workers

The proposed step-by-step instructions for the dismissal procedure for reducing staff for 2020 and sample documents have been developed taking into account the current legislation. But the article discusses the general scheme of termination of employment contracts, it can be supplemented depending on the documentation approved by the employer for internal use.

Step 1. Issue an order

An order for dismissal due to staff reduction is issued on the basis of any primary document:

• decisions of the company's owners to optimize the staffing;
• order of a superior organization or parent enterprise, etc.

• the name and number of staff members to be dismissed;
• the time frame in which the reduction of employees should be made due to the reduction in staff, and the time frame for preparing the necessary documents;
• responsible persons for organizing and preparing documentation.

The order should be prepared at least 2 months before the planned reduction. If this leads to massive layoffs, then at least 3 months.

As an example of determining the mass scale of dismissal, the following figures are taken (clause 1 of the regulation approved by the resolution of the Council of Ministers of the Russian Federation of 05.02.1993 No. 99):

• 50 or more people within 30 calendar days;
• 200 or more within 60 calendar days;
• 500 or more within 90 calendar days.

Or the dismissal of 1 percent of the total number of personnel within 30 calendar days in regions with a total number of employees of less than 5,000 people.

St. Petersburg On reducing the number of staff Based on the decision of the owners of the Pion Limited Liability Company dated 10.09.2020 No. 7, in order to optimize the staffing of the Pion Limited Liability Company, I order: 1. From 01.01.2021 to reduce the number of staff members of the company (Appendix No. 1). 2. Create a commission to determine the pre-emptive right to retain employees who are subject to dismissal due to staff reduction (Appendix No. 2). 3. To the chairman of the commission: 3.1. Prepare notifications about the reduction in the number of staff of the Pion Limited Liability Company and the upcoming dismissal of employees replacing the downsized positions by 21.09.2020. 3.2. Notify all employees subject to dismissal due to staff reductions, by signature by 30.09.2020. 3.3. To offer in writing to all employees subject to dismissal due to staff reductions, all available vacancies that are not contraindicated for health reasons. 3.4. Prepare draft regulations on termination of employment contracts with redundant employees by 25.12.2020. 4. I reserve control over the execution of the order.

Step 2. Notifying the union and employment authorities

1. Trade union.

If there is a trade union in the organization, it is necessary to send a notice of the planned reduction. The notice period is at least 2 months before the planned dismissal. If the reduction in the number of employees leads to mass layoffs - at least 3 months in advance.

Please note that if the organization does not have a trade union, but the employee has joined the ranks of another representative body of workers, it is necessary to notify that organization about the planned termination of the employment contract.

2. Service of employment of the population.

This organization must be notified without fail. Referral times are the same as for the union. Only for individual entrepreneurs there are differences - the notification period is 2 weeks, regardless of the number of people dismissed.

By law, the procedure for reducing a position in the staffing table is different. If no one is actually fired, there is no need to send a notice to the union or employment service.

Step 3. Determine the circle of people who have the preferential right to stay at work

If an organization is cutting one of two identical positions, the employer is faced with the choice of which of the employees to leave. According to article 179 of the Labor Code of the Russian Federation, employees with higher labor productivity and qualifications have the advantage to stay at work. Under equal conditions, priority is given to:

• family employees with 2 or more dependents;
• the only breadwinners in the family, regardless of the presence of children;
• workers who have received an occupational disease or injury while working for this employer;
• chernobyl victims;
• reduction of the staff, admitted to state secrets, is unacceptable;
• spouses of military personnel, etc.

The employer has the right to expand the list of exceptions to include other categories of workers in the collective agreement.

Step 4. We notify employees in writing about the upcoming dismissal

The employer is obliged to notify each dismissed employee in writing about the upcoming dismissal at least 2 months before his dismissal. Moreover, the procedure for reducing the position and notifying the employee assumes that the fact of the warning is confirmed by the signature of the employee. If the employer does not have a written confirmation, the employee will subsequently be able to recover at work.

If the employee is actually absent from work, the employer sends him a notice by registered mail with a receipt acknowledgment by mail. But remember that employees must familiarize themselves with the fact of the upcoming dismissal at least 2 months in advance, therefore, when sending a letter, it is necessary to take into account the delivery time.

Limited Liability Company "Pion" (LLC "Pion") engineer A.V. Ivanov NOTIFICATION 25.09.2020 № 17 In connection with the organizational and staff activities carried out at Pion LLC, it was decided to reduce the number and staff of employees (order No. 56 of September 15, 2020). In this regard, we would like to warn you that your full-time position of an Operations Engineer will be reduced from 01/01/2021. At the same time we inform you that according to article 180 of the Labor Code of the Russian Federation, the employment contract can be terminated with your consent before the expiration of the period specified in this notice. In this case, you will be paid additional monetary compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal. If you agree to dismissal before the expiration of the notice period, please make a written statement. General Director A.V. Voronov

Step 5. We offer employees other available vacancies in writing

The employer is obliged to offer all redundant employees the vacant positions he has that are not contraindicated for them for health reasons. If new vacancies become vacant at the employer's notice period, they are also offered. If this is not done, the employee will demand reinstatement at work through the court, since the staff reduction was made in violation of the law.

The fact of the offer of available vacancies is recorded in writing. If the employee refuses the offer, his refusal is also recorded in writing. If he refuses to sign the papers, draw up an act. In the future, you will need it in court to prove compliance with all the rules of the law.

Limited Liability Company "Pion" (LLC "Pion") engineer A.V. Ivanov NOTIFICATION 25.09.2020 № 17 On the upcoming dismissal due to staff reduction Dear Alexander Vasilievich! In connection with the organizational and staffing activities carried out at Pion LLC, it was decided to reduce the number and staff of employees (order No. 56 of September 15, 2017). In this regard, we would like to warn you that your full-time position of an Operations Engineer will be reduced from 01/01/2021. In accordance with the requirements of Articles 81 and 180 of the Labor Code of the Russian Federation, we inform you about vacant positions as of 09/25/2020, to which you can be transferred with your written consent: In case of your refusal to transfer to the proposed positions, the employment contract with you dated 01.04.2018 No. 35 will terminate after two months from the date of receipt of this notification, in accordance with Article 81 of the Labor Code of the Russian Federation, with the provision of guarantees and compensations provided for by current legislation. We remind you that during the entire period of validity of the warning, you are obliged to fulfill functional duties in the position being replaced and to comply with the internal labor regulations. At the same time, we notify you that in accordance with article 180 of the Labor Code of the Russian Federation, an employment contract can be terminated with your consent before the expiration of the period specified in this notification. In this case, you are entitled to additional monetary compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal. If you agree to dismissal before the expiration of the notice period, please make a written statement. General Director A.V. Voronov A.V. received the notification. Ivanov

Step 6. Obtaining the opinion of the union on the layoff of an employee who is a member of this union

If the enterprise has a trade union, its opinion is taken into account in the manner of Article 373 of the Labor Code of the Russian Federation (see Step 2). Ignoring this requirement entails reinstating the employee who is a member of the union at work.

In total, the trade union has 7 days to develop a position on the issue of the laid-off worker. During this time, the employer needs to obtain a reasoned opinion of the trade union, otherwise it is allowed not to take it into account.

If the trade union agrees with the upcoming cuts, he will write so.

If the trade union disagrees with the decision made by the employer to lay off an employee, the employer is obliged to consult with the trade union within three days and find a compromise solution. These negotiations must be formalized in a protocol.

Although the opinion of the union is advisory in nature and the final decisions remain with the employer, the opinion of the union cannot be ignored. Otherwise, it is possible to appeal either to the labor inspectorate, or directly to the court.

Courts often take the side of the employee, therefore it is very important to carry out this stage in strict accordance with the norms of the law and within the specified time frame.

Step 7. We draw up the termination of the employment contract

An order to dismiss an employee to reduce staff is issued by.

Article 81, paragraph 2 of part 1 of the Labor Code of the Russian Federation is indicated as the reason for dismissal.

Who shouldn't be cut

The list of employees who cannot be dismissed due to staff reduction is set out in article 261 of the Labor Code of the Russian Federation:

• pregnant women;
• women raising children under the age of 3;
• single parent raising a disabled child under the age of 18 or a child under the age of 14;
• the sole breadwinner of a disabled child under the age of 18 or a child under the age of 3 in a family with three or more young children.

Payouts

The size of the dismissal benefit for staff reduction is calculated in the manner prescribed by article 139 of the Labor Code of the Russian Federation. As an additional compensation in case of dismissal due to redundancy, the payment that is due to the employee in case of his written consent to terminate the employment contract before the expiration of the warning period about the upcoming dismissal may become.

Example of calculating monetary compensation

To calculate the amount of compensation for dismissal due to redundancy, all types of cash payments provided for by the remuneration system used in the organization are taken into account.

On the day of dismissal (regardless of the reason for dismissal), the employer is obliged to transfer to the employee all funds due to him, including compensation for unused days of annual paid leave.

The size of the sum in a particular case does not matter, let's call it X.

The amount of payment X is included in the calculation of the average monthly earnings of the employee, on the basis of which the employee will be compensated in connection with the reduction, let's call him Y.

On the last day of his work, the employee receives a cash payment equal to X + Y.

In the next month, the employee will receive another payment equal to Y if he does not find a new job (the employer requires the original work book to be presented before making an accrual).

Further, if a person, within two weeks from the date of dismissal, was registered with the employment agency, but was never employed, the employment agency has the right to decide on the need to calculate a third compensation. In this case, the former employee will receive another payment of Y.

If the employment relationship is terminated before the expiration of the two-month warning period of the upcoming dismissal on the initiative of the organization, and the person is dismissed with his written consent, the employer compensates him for the unworked time with a cash payment in the amount of average earnings (the calculation is carried out in accordance with Article 139 of the Labor Code of the Russian Federation). In fact, this makes it possible to start looking for a new job as early as possible without losing financially.

Schematically, step-by-step instructions for reducing employees in 2020 looks like this:

Penalty for violations

For non-observance of the order of dismissal on staff reduction, including for incorrectly drawn up documents, the employer faces administrative liability under Article 5.27 of the Administrative Code of the Russian Federation and a fine of up to 50,000 rubles for each illegally dismissed employee. If the violation is repeated, the fine rises to 70,000 rubles for each employee. In addition, the employer will have to reimburse the illegally dismissed employee each time the earnings not received during the entire period of the forced absence. In addition, the employer also reimburses the legal costs.

But we recommend employers and officials to familiarize themselves with the judicial practice in this regard. One of the interesting cases was examined by the Supreme Court of the Russian Federation. It follows from the materials of the case that the State Inspectorate for Information Technologies received several complaints about violations committed by the employer during the reduction of staff. On these grounds, the inspectors carried out 2 unscheduled inspections, and in connection with the identification of violations, issued 2 different resolutions on bringing the employer's official to administrative responsibility under Part 1 of Art. 5.27 of the Administrative Code.

However, the Supreme Court of the Russian Federation, by its resolution dated 01.10.2018 No. 41-AD18-21, canceled one of the fines. According to the judges, in this case, not two different offenses, but only one, and it is permissible to prosecute only once. The resolution also states that it is allowed to combine the results of several inspections into one resolution on bringing to administrative responsibility if the same violations are revealed as in the situation under consideration.