Laying off workers in 2021 without consequences for companies

In every organization, regardless of its period of existence, there may come a time when it is necessary to terminate a previously concluded employment contract with an employee. If during the course of operations at the enterprise there is a large turnover of personnel, then the director can develop a special regulation on the procedure for dismissing employees from the organization.

Dismissal of an employee under the Labor Code of the Russian Federation

The dismissal of employees is regulated by law. Chapter 13 of the Labor Code of the Russian Federation lists the grounds for dismissal. In abbreviated form, their list looks like this:

• expiration of the employment contract (Article 79);
• the employee’s own desire to terminate the employment relationship (Article 80);
• the employer's initiative to terminate the employment contract (Article 81);
• mutual consent to terminate contractual obligations (Article 78);
• liquidation of an enterprise, reorganization, reduction of staff (Article 83);
• non-compliance with the rules for concluding a contract (Article 84).

An employment contract can be concluded on an indefinite basis or for a specific period. The fixed-term contract terminates automatically. If it has a fixed end date, then everything is simple. But it happens that a contract is drawn up to perform the duties of a temporarily absent employee. Then it will cease to operate from the moment that employee exits.

The procedure for ending contractual employment relations by mutual agreement of the parties speaks for itself. In this case, the employee is entitled to payments (salary, compensation for unused vacation, bonuses, allowances).

Dismissal at the employee's own request is considered common, the obligatory condition of which is a written warning from management 2 weeks in advance.

The manager has grounds for terminating contracts with employees due to systematic violations of labor regulations, being drunk in the workplace, or inadequacy of the position held. But he can fire workers without their fault. The reasons for this are liquidation, reorganization of the enterprise, staff reduction, forced stoppage of the production process. At the same time, employees retain the payments and compensations required by law. The lack of funds in company accounts is not grounds for dismissing employees without due settlement payments.

General procedure for dismissing employees

Dismissal begins with determining the grounds. The procedure, rules for processing documents, and in some cases, the amount of payments will depend on this.

The general procedure includes:

1. Notification of impending dismissal by an employee or employer.
2. Preparation of supporting documents for the order.
3. Issuance of a dismissal order.
4. Drawing up a note-calculation for the accounting department.
5. Making entries in the employee’s personal card and work book.
6. Issuance of pay to the dismissed person, work book and other documents.

Video: main stages of dismissal

Dismissal on the employee's own initiative

Dismissal at the request of an employee begins with him writing a statement. It is signed by the manager, giving permission to terminate the employment relationship. A point worth paying attention to is the date of dismissal.

The wording of the date of dismissal in the application must be extremely clear, specific, and understandable. For example, I personally wrote: “I ask you to resign at your own request on December 28, 2021.”

The application must include the date from which the person asks to be fired.

The next step is an order, which is drawn up by the personnel officer and signed by the manager and the dismissed employee. On the order, the employer signs approval for dismissal with or without two weeks of work.

In the order of dismissal at one's own request, clause 3 of part 1 of Art. is indicated as the basis. 77 Labor Code of the Russian Federation

On the last day worked by the employee, he is given a work book with a record of termination of the employment contract with a mandatory indication of the grounds (articles of the Labor Code of the Russian Federation). In addition, the employee receives the required payments, a medical record, certificates of wages and income, and information about personalized records.

The correct wording of the entry in the work book includes the date, basis and number of the order

Termination of employment relationships by agreement of the parties

Dismissal by agreement of the parties is quite common. However, there are nuances that should be considered by both employees and employers.

For an employee, severing employment relations through agreement is beneficial from all sides. Firstly, the dismissal period is agreed upon immediately. Secondly, the agreement can establish compensation payments. Thirdly, the employer will provide characteristics for the next job. Finally, the employee will receive a neutral wording for the entry in the work book. In a new place you won’t have to explain the reasons for leaving the previous one.

For the employer, such termination of the employment contract also has more advantages. Firstly, there is no need to endorse the employee’s resignation letter. Secondly, there is no need to notify the employee in advance about the upcoming dismissal. Thirdly, a person can be fired on this basis during a period of incapacity for work and while on vacation.

Personal experience of dismissal by agreement of the parties confirms that the wording of the grounds (article of the Labor Code of the Russian Federation) is truly neutral. Questions from new employers disappeared after the interview. But the dismissal was due to failure to complete the probationary period. This means that resigning by agreement is sometimes even beneficial.

You can agree to terminate the contract through oral or written negotiations. In the latter case, a proposal is written from the employer or employee to terminate the contractual relationship.

A proposal to terminate the contract can come from both the employee and the employer

After reaching a compromise, a separate agreement to terminate the contract is drawn up. It specifies the amount of compensation payments and the conditions for severing relations. A properly drafted agreement will protect the parties from undesirable consequences.

The text of the agreement on termination of the employment contract may contain a condition for payment of compensation

Dismissal at the initiative of the employer

Termination of an employment relationship at the initiative of the employer is not an easy matter. There are reasons that will allow you to fire an unwanted employee. These include:

• absenteeism;
• the employee’s inadequacy for the position held (attestation is required);
• systematic failure to fulfill labor duties;
• gross violation of labor duties;
• appearing in an inadequate state at work;
• loss of trust as a result of careless attitude towards the property of the enterprise;
• disclosure of trade secrets;
• theft (confirmed by a court decision).

Each violation must be recorded in a document. The employer’s obligation is to request written explanations from the violator. And only if they are not received or they turn out to be unsatisfactory, the person can be dismissed with a corresponding entry in the work book. Based on documents documenting the violation, a dismissal order is issued. Such an employee is not entitled to compensation payments, however, the last month’s salary and compensation for unused vacation are paid in full.

The order for the dismissal of an employee due to his fault lists the grounds - documents confirming the fact of the violation

But there are situations beyond the employee’s control when management has to fire people. These include:

• liquidation of the enterprise;
• reduction in numbers, staff;
• forced termination of the organization's activities.

The dismissal algorithm for layoffs and liquidation includes:

• issuing an order regarding the upcoming reduction in numbers/liquidation;
• written warning to employees of dismissal at least 2 months in advance;
• warning to union members;
• notification of the local labor exchange;
• issuing dismissal orders;
• entries in personal cards and work books of employees;
• calculation of employees and issuance of work books to them on the day of dismissal.

The only difference between dismissal due to reduction is that the employer is obliged to offer the employee a vacant position, if there is one at the enterprise. Dismissal due to reduction is carried out under clause 2 of part 1 of Article 81 of the Labor Code of the Russian Federation, in case of liquidation - under clause 1 of part 1 of Article 81.

Familiarization of employees with orders is a mandatory formality. If you do not want to sign the order, the personnel officer makes a note.

Employees must be familiar with notifications against signature

The forced closure of a company's activities occurs by order of the judicial authorities. In this case, the dismissal of employees occurs in stages:

• a decision is made to force the company to close;
• a plan for the procedure to be performed is drawn up;
• a plan for layoffs of staff is being formed;
• employment services are notified;
• employees and union members are notified 2 months in advance;
• the required package of documents is prepared and executed;
• payments are made to employees.

If a company is forced to close, all employees without exception, including pregnant women and minors, are subject to dismissal.

Legislation

The procedure for an employee leaving his position, like all other relations between an employee and an employer, is regulated by the Labor Code of the Russian Federation. For example, dismissal at will in 2021 is regulated by Article 80 of the Labor Code of the Russian Federation.

An employee can terminate both a fixed-term agreement and one that is signed for a long term - the dismissal procedure itself does not depend on this in any way.

If any violations of the established conditions occur, responsibility for them lies with the management of the personnel department - this process is controlled by them.

You need to know that even if the employee submitted a resignation letter at his own request, but there are circumstances prescribed in Article 81 of the Labor Code, the employer can dismiss the person on their basis by entering the appropriate notes in the work book.

Payments upon dismissal

Regardless of the grounds for dismissal, the employer is obliged to pay the employee off within the established time frame and pay the required compensation upon termination of employment contracts.

An employee who writes a resignation letter is entitled to:

• wages for days worked;
• bonuses provided for by the internal legislation of the company;
• compensation for unused vacation;
• other compensation payments specified in the collective agreement.

Retrenchment of an employee in accordance with Article 178 of the Labor Code of Russia involves payment of severance pay in the amount of average monthly earnings and retention of wages for a maximum of three months.

Dismissal of seasonal workers in accordance with Article 296, Part 3 of the Labor Code of the Russian Federation retains their right to receive compensation in the amount of two weeks' earnings. But workers who have entered into contracts for a period of up to two months are not entitled to benefits. This is discussed in Article 292, Part 3 of the Labor Code of the Russian Federation.

Article 307 part 2 and article 347 part 2 of the Labor Code of the Russian Federation give private entrepreneurs and religious organizations the right to determine the amount of benefits for dismissed employees.

The employee will receive the full payment on the last working day along with the work book, a copy of the dismissal order, and salary certificates. The excuses from management, accounting, and personnel officers regarding estimated payments on payday are unfounded and illegal. Delay in compensation payments entails troubles for the company and penalties.

The employer’s obligation is to issue the dismissed employee a paycheck and work book on the last day of work.

Work upon dismissal

The Labor Code of the Russian Federation sets out the deadlines that an employee must adhere to when submitting an application for dismissal. In general, this is 2 weeks. By agreement with the employer, the period may be a shorter number of days, up to the day of dismissal.

There are different periods of forced service before dismissal. They depend on the category of employees. Thus, the period of service for managers is 1 month. Probationary workers, seasonal and temporary workers submit applications 3 days in advance, respectively, the work period is the same number of days.

There are possible options for dismissal without required work. These include:

• employee retirement;
• a summons from the military registration and enlistment office to conscript an employee into the army;
• employees enrolled in full-time studies at universities, institutes and other educational institutions;
• workers whose labor and human rights are violated by company management;
• employees who received positions through competitions to fill vacant positions in state and municipal organizations.

During the working period, the employer looks for a replacement for the resigning employee, and the latter, in turn, considers the decision. If the initial desire to quit is canceled, he can withdraw the application and remain working in his previous place.

If an employee neglects the manager’s demands for time off, the latter has the right to fire him for absenteeism by drawing up an absence from work report. Make an appropriate entry in your work book.

Sometimes situations arise when there is no desire to work 14 days, relationships with superiors are damaged, or health does not allow it. Labor legislation officially provides for the following options:

• carefully read the employment contract and additional agreements to it. It may be that the employee is allowed to resign on the day the application is submitted;
• take leave for the duration of your work and then resign;
• take sick leave and present it after illness.

Video: when dismissal without working is possible

Nuances

It is better to plan the day you leave work in advance, since the organization’s management may require you to work fourteen days or less. There are also situations in which the employer is obliged to terminate the employment relationship with the employee exactly when the latter wants it. For example, if an employee began studying, retired, moved to another region, etc.

The employer cannot change the day of dismissal in the documents at his own will. The employee must be dismissed on the exact date indicated in the application.

Important! Before the order is issued, the employee may change his decision to formalize the termination of the employment contract. Notification of this to superiors is allowed on any day during the working period. The exception is a position already occupied by another person.

Although the procedure for dismissing an employee on his own initiative is quite simple, there are some pitfalls and conditions that you should definitely be aware of: grounds and wording, reasons, etc. If a conflict situation arises with the employer that is directly related to future dismissal, do not It is worth taking actions based only on emotions. It is necessary to strictly comply with the legislation, and only this will allow you to save your own time and avoid negative consequences.

Options for appealing illegal dismissal

Often, employers are arbitrary in dismissing employees. The labor legislation of the Russian Federation strictly regulates and controls such facts. Among the mistakes in the dismissal algorithm, HR officers make the following:

• an entry is made in the work book for a non-existent article;
• do not draw up appropriate documents confirming the employee’s guilt upon dismissal at the initiative of the employer;
• violate the procedure for familiarizing employees with orders;
• They make mistakes in payment documents and delay payment deadlines.

In case of illegal dismissal, the employee has the right to challenge management's decision. To do this, you need to write an application to the supervisory authority - the Labor Inspectorate. Documents required for this:

• citizen's passport;
• information about the organization: address, telephone numbers, full name of the head.

Having accepted an application from an employee, the Labor Inspectorate is obliged to begin a factual inspection. If illegal dismissal is confirmed, a verdict is rendered in favor of the employee. The employer is forced to:

• revoke the dismissal order;
• reinstate the employee;
• pay for unworked days (forced absences);
• recalculate increased salaries during absence;
• dismiss the employee hired for the vacated position;
• pay compensation for moral damage.

If you cannot restore the employee’s rights in this way, contact the courts. The court will resolve the current situation through a court hearing. The initial stage is filing a claim for reinstatement and reimbursement of funds. Along the way, it is necessary to collect evidence of the manager’s unlawful actions: orders, contracts, statements, settlement documents.

The statement of claim describes the employer’s illegal actions and indicates the employee’s demands against him

Having discovered the fact of illegal dismissal under the labor legislation of the Russian Federation, the court will make a decision and bring the manager to administrative and disciplinary liability, with removal from office for up to three years and payment of fines of up to fifty thousand rubles. If the employee’s goal is not reinstatement, the court will order the employer to change the grounds for dismissal by making an appropriate entry in the work book.

Arbitrage practice

In February 2021, the district court of the Kirovsky district of Tomsk considered the claim of Morozov V.O. against Information and Consulting Agency LLC. The employee demanded that the dismissal be declared illegal, reinstated, compensation for forced absences in the amount of the salary for each day, and compensation for moral damage in the amount of 25,000 rubles. Morozov referred to the fact that on the day of signing the notice of forced dismissal he was on sick leave and confirmed this with a certificate. In addition, he asked the court to take into account his difficult life situation: an apartment taken out on a mortgage, bank demands for the return of funds, the inability to find a new job due to negative reviews from a previous employer. Morozov V.O. agrees to another job proposed by management. The consulting company itself did not offer any vacancies.

A company representative orally confirmed the fact of dismissal due to staff reduction at the court hearing. However, he did not provide any documents. The staffing table was drawn up incorrectly. In addition, the court established the existence of three positions in which part-time workers work.

By the way, similar facts exist in many organizations. So, for example, postal workers work for three people, but for a third of each salary. As a result, they receive the salary of one employee. I wonder where the resulting savings go?

A company representative, citing the conflictual nature of the dismissed person, said that management did not consider it necessary to offer free rates. And the position that was cut turned out to be unnecessary. Responsibilities were transferred to another department.

The court, having carefully listened to the arguments of both sides of the process, considered the actions of the employer who did not offer the dismissed person a vacancy unlawful. As a result, it was decided to satisfy the claims of V.O. Morozov: to recognize the dismissal as illegal, to apply for a vacant position, to pay moral damages in full, to pay for forced absences based on the average daily earnings for each day.

As we can see, workers' rights are still protected. The main thing is to remember that an employer cannot commit unlawful acts solely at will or because of personal hostility.

The rights of workers are closely monitored by the state and protected by the Labor Inspectorate. Read the orders carefully and check your labor records. Unlawful termination of employment contracts can be appealed. Justified dismissals for absenteeism, drunkenness in the workplace, and other disciplinary violations are not subject to appeal. In these situations, the law is on the side of employers.

Vitaly Sazonov

Lawyer, author of articles on legal topics. Education: state educational institution of higher professional education "Moscow State Open University".

Dismissal procedure

In order for an employee to say goodbye to his place of work and management, he needs to carry out the steps described below upon dismissal, prescribed in labor legislation.

Step-by-step instruction:

1. The first stage is drawing up a resignation letter. The desire must come from the person leaving, and not be the result of threats from the employer. When writing an application at the request or order of the company’s management, it will be quite difficult to prove the unlawfulness of the dismissal in the future.
2. Next, an application for termination of the employment contract is submitted to management (director, general director). If it does not agree with such a decision, and an agreement has not been reached, a refusal may be issued. In this situation, it is recommended to send the application and notice of dismissal by mail.
3. Once accepted, a dismissal order is issued. Such paper is issued precisely at the moment a person leaves the workplace.
4. Next, an entry is made in the work book, where information is entered that the specialist was fired on his own initiative. The employee signs papers confirming receipt of the work book.
5. The last stage is to carry out the necessary calculations. This includes not only wages, but also compensation for vacation days that were not used by the employee, financial assistance, etc. Money is accrued in accordance with the standards prescribed by current legislation.