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How are payments calculated in case of reduction by agreement of the parties? What is the difference between dismissal by reduction and by agreement of the parties: which is better and more profitable for the employee

During the financial crisis, most companies reduce the number of employees. There are two ways to carry out this procedure. By reducing the number or staff (clause 2, part 1, article 81 of the Labor Code of the Russian Federation) or by dismissal by agreement of the parties (Article 78 of the Labor Code of the Russian Federation). Each option has its pros and cons. Therefore, the final choice is best made taking into account an assessment of all the circumstances in a particular situation.

Downsizing or downsizing: there are many risks involved in a time-consuming procedure

Downsizing is the complete removal of one or more positions on the staffing table. For example, the company will no longer have such a position as an assistant secretary. And the reduction in the number of employees means a decrease in the number of staff units for a specific position: there were five assistant secretaries, and there will be two.

The procedure for dismissal with a reduction in staff and the number of employees is the same. This procedure is multi-stage, and skipping one step can give the employee a chance to subsequently challenge the dismissal in court and reinstate work with compensation for forced absenteeism according to part 2 of article 394 Labor Code(paragraph 29 of the resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2). That is, the slightest oversight can lead to additional costs instead of the planned savings.

TOPIC ADVICE

If vacancies are also planned to be reduced, then it is more expedient to do this before notifying employees. Otherwise, if an employee agrees to a vacant position, he will first have to be transferred, and then start the reduction procedure again.

Step one: selection of candidates for dismissal. It is necessary to make a list of positions that management plans to reduce and the employees occupying these positions. From their number, it is necessary to immediately exclude those who, in principle, cannot be fired due to staff reduction (Article 261 of the Labor Code of the Russian Federation): pregnant women; women with a child under three years old; single mothers with a child under 14 years old, and if the child is disabled, then up to 18 years old; employees raising a child without a mother. From the rest of the workers, it is necessary to select those who have the right to preferential retention at work (Article 179 of the Labor Code of the Russian Federation). It is also very risky to fire them.

Verification of preemptive right is required in two cases. Firstly, when the number decreases (out of several employees in the same position, some must be fired, and some must be left). And, secondly, when a certain position is reduced altogether, but the company remains almost homogeneous in content labor function positions otherwise named in the staffing table.

First of all, the criteria for preemptive right an employee for “immunity” with a reduction in staff, are higher labor productivity and qualifications (part 1 of article 179 of the Labor Code of the Russian Federation). If higher qualifications can be confirmed by the presence of specialized education and longer work experience, then labor productivity in some specialties is difficult to measure. Meanwhile, the lack of a clear justification for why this particular employee was fired (which makes him worse than those left) may lead to the recognition of the dismissal as illegal. Therefore, if management wants to give preference to a particular employee, but his qualifications cannot be called higher with certainty, then it is necessary to consider criteria for comparing the productivity of this employee with others, taking into account the specifics of their activities. The results can be presented in the form of a comparative characteristic.

If the qualifications and labor productivity are the same, then the choice of a candidate for dismissal is carried out according to the criteria of the “second priority”. Preference is given to those employees who have one of the circumstances specified in paragraph 2 of Article 179 of the Labor Code. For example, at least two disabled family members are fully supported by him, or all his close relatives do not have independent earnings. It seems that in order to establish these circumstances, the company should request from all employees whose positions are planned to be reduced, documents on the composition of family members, their age and social status(do they work or not, and if not, for what reasons - retirement age, disability, etc.). With massive layoffs, this is a very laborious process. Since the family circumstances of employees may change by the time of dismissal, it is better to double-check the data immediately before the layoff for reliability.

Step two: warning employees about layoffs. Two months before the upcoming dismissal, it is necessary to warn about this in writing and against the signature of each employee personally (part 2 of article 180 of the Labor Code of the Russian Federation). Moreover, the two-month period is counted from the day when the employee signed the notice.

An employee's refusal to sign the notice may make the entire procedure illegal. Unlike other personnel documents, regarding this warning, the Labor Code does not allow the possibility of replacing a signature with a note that the employee refused to sign.

When candidates for dismissal are selected on the basis of a lack of preferential right to stay at work for family reasons, it is better to warn about the possible dismissal not only of them, but also of other employees in a similar or similar position who, at the time of comparison, had reasons for “immunity”. This is necessary just in case, in two months, circumstances change so much that it will be necessary to fire someone who was not originally planned.

In the notification, it is also necessary to offer the employee all the vacancies available to the company both in terms of his qualifications and in lower and lower paid positions (part 3 of article 81 of the Labor Code of the Russian Federation). If the company has branches and representative offices, then the employee must be offered work for vacancies within the "same locality". For example, for all branches within the same city and its region (determination of the Supreme Court of the Russian Federation dated 03.11.06 No. 5-B06-94). If a vacancies No, you need to write about it directly in the notification.

Step three: dismissal and payment of compensation. The head of the company issues an order to reduce the state or number of employees and approves a new staffing(form No. T-3, approved by order of the State Statistics Committee of Russia dated 05.01.04 No. 1).

Orders are also issued for the dismissal of warned employees (parts 1, 2 of article 84.1 of the Labor Code of the Russian Federation), the corresponding entries are made in their work books.

On the last day of work, each employee must be paid not only the salary for the last month, but also a special severance pay in the amount of his average monthly earnings, unless a higher amount is established in the labor or collective agreement (Article 178 of the Labor Code of the Russian Federation). If, at the end of the first month after the dismissal, the former employee does not get a new job, then the company must also pay him the days of "non-employment" of the second month after the dismissal (also in the amount of average earnings). For example, an employee was fired on November 30, 2008. I got a new job on January 19, 2009. On the day of dismissal, he is entitled to a severance pay in the amount of the average monthly earnings. In addition, the company will have to pay for the period from December 31 to January 18. If the employee in our example does not find a job after two months after the dismissal (up to January 31), then the company will have to pay the second month in full.

If in the third month from the date of dismissal the former employee did not go to work, then the company pays the average monthly salary for this month according to the decision of the employment service. But provided that the employee applied there within two weeks after the dismissal. In addition, exceptional reasons are required to pay for the third month - for example, absence from the family former employee any other sources of income (decree of the Federal Arbitration Court of the Volga District dated July 5, 2007 in case No. A12-20261 / 06). Otherwise, the company has the right to challenge the decision of the employment service in court as a non-normative act.

An employee can be fired even before the expiration of two months after the warning, provided that he has given written consent (part 3 of article 180 of the Labor Code of the Russian Federation). However, in this case, he is entitled to additional compensation - for the period after the dismissal until the day when two months expire from the date of the notice of dismissal (question 18 from the Review of Legislation and judicial practice of the Supreme Court of the Russian Federation for the first quarter of 2007, approved by the decision of the Presidium of the Supreme Court of the Russian Federation of May 30, 2007).

TOPIC ADVICE

The forthcoming reductions must be reported in writing to the employment service (clause 2, article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment in the Russian Federation”). This must be done no later than two months before the start of the relevant events, and if the reductions are massive, three months before. Failure to comply with this obligation in itself cannot become a reason for the subsequent reinstatement of employees, but the company faces a fine of 3,000 to 5,000 rubles for this (Article 19.7 of the Code of Administrative Offenses of the Russian Federation).

Dismissal by agreement of the parties: safe, but requires the consent of employees

Dismissal by agreement of the parties has undeniable advantages. Firstly, this dismissal is not at the initiative of the administration. This means that it is practically impossible for employees to subsequently appeal it in court. Secondly, the procedure is very simple - it is enough to sign an agreement in which to establish a term for terminating the employment contract. There is no need to notify either the trade union or the employment service. Finally, on this basis, any employee can be dismissed - the restrictions established in Article 261 of the Labor Code do not apply in this case.

Dismissal by agreement of the parties (Article 78 of the Labor Code) and dismissal by own will are not identical concepts. In the first case, both parties, and not just the employee, express their will regarding the termination of the employment contract. Therefore, after signing the agreement, the employee cannot then change his mind and refuse to quit, as in case of dismissal of his own free will (part 4 of article 80 of the Labor Code of the Russian Federation).

To convince an employee to quit by agreement of the parties, companies usually also pay some kind of "compensation", although the Labor Code does not provide for such an obligation. It seems that this payment should not be less than the one that the employee can count on in case of reduction, otherwise there is simply no reason for him to leave the company by agreement. However, given that the employee does not need to be warned about the dismissal by agreement of the parties in advance, the company will be able to cut its staff faster. This means that, as with a reduction, you will not have to pay an extra two months' salary before dismissal and maintain jobs. But we emphasize that savings are possible only if the employee is satisfied with the amount proposed by the company.

True, when choosing a more economical option, one must also take into account the fact that it is safer to pay the "compensation" by agreement of the parties at the expense of net profit. Tax officials often insist that they cannot be attributed to expenses that reduce the tax base for income tax (as opposed to compensation for downsizing, which is directly indicated among labor costs in paragraph 9 of Article 255 of the Tax Code). The fact is that this payment is not named in the Labor Code and is associated with the termination of the employment contract, and not with wages. In fact, this is a moot point. For example, the Ministry of Finance of Russia believes that compensation can be included in expenses if it is provided for by an employment contract (letter No. 03-03-06/1/546 of September 26, 2008). However, the courts still support the tax authorities (decrees of federal arbitration courts of the Moscow District of April 16, 2007 in case No. KA-A40 / 2100-07, of the Far Eastern District of December 12, 07 No. F03-A24 / 07-2 / 5014).

If the company has a union, it must also be warned about the reduction in staff

This is a mandatory step, due to non-compliance with which the court may recognize the reduction as illegal (paragraph 24 of the decision of the Plenum of the Supreme Court of the Russian Federation of March 17, 04 No. 2). The employer must notify the trade union in writing of the upcoming reductions no later than two months before the start of the relevant events, and if the reductions are massive, three months in advance (part 1 of article 82 of the Labor Code of the Russian Federation ). According to the ruling of the Constitutional Court of the Russian Federation of January 15, 2008 No. 201-O-P, “the beginning of the events” is considered the beginning of the termination of employment contracts with employees. That is, it is necessary to notify the trade union simultaneously with the warning of employees, and if mass layoffs are coming, then a month before notifying employees.

The general criteria for the mass layoffs are determined in sectoral and territorial agreements between employers and trade union organizations (the procedure for their conclusion and operation is established in articles 47 and 48 of the Labor Code). If the company has a union, it must also be warned about the reduction in staff.

Which exit option to choose

Base
layoffs

When is the best time
use

Reduction
state or
numbers

1. The employee is not entitled to refuse dismissal (initiative of the employer)
2. Compensation payments reduce the income tax base

1. Complexity and duration of the procedure
2. Labor intensity (requires registration a large number documents)
3. Danger of contestation (any oversight can lead to the reinstatement of an employee)
4. Cost (payment for two months of work plus compensation, which can reach the amount of payment for three months)

1. When the likelihood of a challenge is low (preemptive right to stay at work does not apply at all, there are no vacancies, employees have signed a notice of the upcoming reduction).
2. When an employee refuses to leave by agreement of the parties
3. When it is fundamentally important for a company to attribute compensation to expenses for tax purposes

Dismissal of an employee by agreement of the parties

1. Quick and easy procedure
2. The probability of challenging the dismissal is practically reduced to zero
3. Compensation is not limited by the minimum limit

1. Possible only with the consent of the employee
2. Compensation payments - only at the expense of net profit

1. When there is a high risk of challenging a layoff (for example, it is difficult to determine who has the advantage of staying at work)
2. When the employee did not sign the notice of the upcoming reduction (higher compensation can be offered)
3. If it is more important to carry out layoffs quickly than to save on compensation

Some employers offer employees choose between dismissal to reduce and dismissal by agreement of the parties. But the employee always has doubts about how open and honest the employer is in this proposal. Is there a trick in it? Let's look at both forms of dismissal in more detail.

Reducing the number and staff of employees

The reduction in the number and staff is usually used in cases where the business or its individual areas are not in the best economic situation, then it becomes necessary to optimize the number of employees. Labor law prescribes in such a situation strict observance of the rights certain categories employees, as well as strict adherence to the timing and sequence of the redundancy warning procedure and the dismissal itself. Let us dwell in more detail on the procedure for dismissal by reduction. First of all, before the start of the reduction procedure, employees who are not subject to reduction (single mothers, pregnant women, and others) should be identified, and the preferential right to be left at work should be taken into account.

That is, if an employee has a higher qualification, has two or more dependents, and in a number of other cases, then he has more rights to continue working than other employees. The company must notify the employee about the layoff no later than two months before the expected date of dismissal, as well as inform the employee in writing about the available vacancies. If the dismissal of an employee cannot be avoided (there are no vacant positions in the company, the employee does not belong to the “preferential” group), then upon dismissal, the company is obliged to pay him a severance pay. If the employee does not find a job, then the right to receive benefits in the amount of the average monthly salary is reserved for him during the second and third months from the date of dismissal (provided that he is registered with the state employment center). Thus, the employee potentially has the opportunity to maintain approximately the same level of income for five months (from the moment of the notice of the reduction and until the end of the third month from the date of dismissal). This is especially important for those who are not in high demand in the labor market for various reasons.

Dismissal by agreement of the parties

Dismissal by agreement of the parties is a fairly flexible form of separation of the company from employees, which can be used in different situations. It does not imply strict requirements for document flow and terms of notice of dismissal. This form of dismissal is chosen when it is difficult to part with an employee for other reasons. It is legitimately used by companies as an alternative to redundancy, since the compensation package may include payments comparable to those during the reduction, and sometimes even more. Often, those who are confident that they will quickly find a job are inclined to this form of dismissal, they want to receive the amount of compensation immediately and be free to search new job.

But often given form dismissal is used by the employer as a way of putting pressure on the employee: they want to leave the employee, they do not want to provide other work, and the payments upon dismissal are offered meager or not offered at all. In this situation, it should be remembered that dismissal by agreement of the parties is the result of mutual agreements, but if the conditions are not satisfactory, it is not worth agreeing to dismissal.

Let us analyze a specific example of a client contacting our lawyers, who is faced with the need to choose a form of dismissal:

I hold the position of a senior researcher at a research institute. The project that we have been working on for five years is closed, our department is being disbanded. At the meeting, they said that they would not be able to find us a job at the institute, although there are rumors about the opening of new projects. They said that most of the employees of our department would be fired either by agreement of the parties with the payment of three salaries, or by reduction (they offer to choose). Is it legal? Are my rights being violated?

At first glance, there is nothing illegal in the proposal of our client's employer: he is not pressured, he is offered to choose between similar compensation packages. But since our client is the only senior researcher in the department (all other junior researchers), he has the pre-emptive right to be left at work, in addition, if he chooses the agreement of the parties, he will lose the right to get a vacant position in a new project, if one appears. If you are faced with a similar situation, you can contact our lawyers. We will help you make the right choice!

Problem

Hello!

Please advise me.

I work at an enterprise that is part of the state corporation Rosatom. A few days ago I learned that a massive layoff of our company's employees (approximately 350-400 people) is planned. The parent company is ready to allocate funds so that most of the staff would leave by agreement of the parties and are ready to pay six average wages. Our enterprise is located in ZATO and is equated to the cities of the north, i.e. compensation for layoffs and registration at the employment center are paid within six months, and if there has been a mass reduction, then in my opinion they continue to pay with a reduction factor (I'm not sure about this and would like to clarify this point with you).

I want to consult that it is better to choose to quit by agreement of the parties or to reduce staff.

If I choose the agreement of the parties, then how best to write a statement to take into account all the nuances. Should the phrase “in connection with the reduction” be used in the agreement, and what advantages does this provide. If I leave by agreement of the parties, then how long can I become an employment center and what payments will be accrued (minimum 5800 or depending on salary or average earnings). As I understand it, vacation compensation may not be paid if it is not specified in the agreement and tax on compensation payments should not be levied. I also want to leave from a certain date, can I indicate this date in the application?

I look forward to detailed answers to my questions.

Sincerely!

Solution

Hello Oksana!

Come on, so, I'm still answering the question posed in the title of the topic. It is better to quit to reduce the number or staff, since various payments are guaranteed there for the period until you can find a job in a new job, i.e. while you are looking for a job.

http://taktaktak.org/blog/posts/2014/05/11537/ Payments in case of reduction in the number or staff of the organization's employees

But, here, employers usually refer to those who have been laid off, that specialists who are no longer needed or not pleasing to the employer fall under the reduction. a good professional will always find how to keep in the company. From this point of view, it seems that it is not profitable to fall under a reduction in the number or staff.

Thank you! Yes you are right. We have a rather rare specialization (composite materials) and only three people work on this topic, but they are higher than me in category. Although it is clear that the enterprise is falling apart and there is no point in staying.

Now I'm reading your topic, and you know, if you write that that a massive layoff of our employees is plannedenterprises (approximately 350-400 people). The parent company is ready to allocate funds so that most of the staff would leave by agreement of the parties and are ready to pay six average wages.

1. because this is a mass reduction, and here it is precisely when finding a job with a new employer that it is necessary to point out that the company is not doing very well, and this was a massive reduction.

2. this employer offers you all the benefits that are guaranteed for an employee in the regions of the Far North and areas equivalent to them and this situation. And they are ready to make these payments to you for 6 months if you quit by agreement of the parties, and this is precisely for 6 months, by the way, which are guaranteed if you were fired due to a reduction in the number and staff, provided that you applied to the Central Health Commission, and here you will be paid exactly everything if you quit by agreement of the parties.

And therefore, look at the situation, I would agree to quit precisely by agreement of the parties, because. if the organization is doing badly, then it is better to get into the stream when you have money to make payments upon dismissal and what good payments. And then, if you drag out the situation, and the company’s business goes badly, then you will have to run around the courts and demand your payments upon dismissal, but it turns out that the organization will not have any money to receive these payments, there are examples and even giants industrial companies cannot then pay their employees even by a court decision.

And yet, if you want to contact the CZ and / or register with the CZ, then you can do this with a record of dismissal by agreement of the parties, the main thing is that you will be paid these 6 average wages under this article.

One moment, look, the main thing is that the Agreement on termination of the employment contract by agreement of the parties states that you are paid 6 average wages upon dismissal and the second copy of this agreement signed is mandatory so that you are given your hands and no promises, if this will not be spelled out in the Agreement to disagree, tk. deceived.

to your question, Should the phrasein the agreement "in connection with the reduction"

If this is a dismissal by agreement of the parties, then there can never be such a phrase in the Agreement, but what should be there, I have already indicated exactly that you will be paid compensation or severance pay or a bonus, let them call it as they want in the amount of 6 average monthly earnings.

About the employment center, I told you, you can get up and with such a record of dismissal, you will need to bring a certificate from the employer to the center, the amount of the benefit will depend on the amount that will be indicated in the certificate, and provided that within 12 months Before the start of unemployment, you had at least 26 calendar weeks on a full-time basis, and I think that you will receive exactly the maximum payments in this case, and the district coefficient is also added to this amount.

In accordance with paragraph 1 of Article 30 of the Law of the Russian Federation “On Employment in the Russian Federation” dated April 19, 1991 No. 1032-1, unemployment benefits are set as a percentage of the average earnings calculated over the past three months at the last place of work, if during the 12 months preceding the start of unemployment, the citizen had paid work for at least 26 calendar weeks on a full-time (full-time) or part-time (part-time) basis, converted to 26 full-time calendar weeks ( full working week) and dismissed from the organization for any reason, except for those specified in paragraph 2 of this article.

To register a citizen for search purposes suitable job and recognizing him as unemployed in the future, the citizen must apply to the employment department at the place of residence, fill out an application form for providing the citizen public service assistance in finding a suitable job and, in accordance with clause 2, article 3 of the Law on Employment, submit a certificate of average earnings for the last three months at the last place of work, issued in the prescribed manner, as well as present:

Passport or document replacing it;

Employment book or a document replacing it;

Documents certifying professional qualifications;

An individual program for the rehabilitation of a disabled person, if there is a disability.

Thank you very much, everything is very clear. 26 weeks even if we count from the beginning of the new year, they will come at the end of June, and in 12 months they have been worked out for a long time. The reduction of the above number is planned to be completed before September 10, dismissal by agreement of the parties until August 15.

And yet, if the agreement on vacation compensation is not spelled out, then you are wrong here and you don’t understand, but if it doesn’t say about 6 average monthly earnings, they may not be paid, but compensation for unused vacation this is a guaranteed payment upon dismissal, Article 127 of the Labor Code of the Russian Federation, and you can’t write about this payment in an agreement or in an order for dismissal, it’s simply that the employer is required by law to pay, in the same way he will be obliged to pay for days worked in the period to the day of dismissal.

I also want to leave from a certain date, can I indicate this date in the application? - you can indicate this date in the application, but this is already by agreement with the employer and the main thing in the application is to indicate that you are asking to be fired on such and such a date and you agree to be fired by agreement of the parties, but on condition that this Agreement is signed with you on termination of the TD and will issue a second copy in hand and provided that this Agreement will indicate payments in the amount of 6 average monthly wages, to those payments that are guaranteed by law. It's better to write a statement somewhere.

Now most of the enterprise is being transferred to 2/3 (workers already leave on 2/3 from the 9th), the question is not yet clear for specialists.

Explain please:

If we are sent to 2/3, do we still have to be at work for 8.2 hours and still receive 2/3 of our earnings? (The workers currently have no work, and they are sent home, but we always have a job). And how will such payment affect the average monthly earnings. They also offer to go on vacation for a given period, for whom they have not been used. I am now thinking of postponing my vacation for the specified period and that this will bring the least damage to my average earnings.

If we are talking about simple, then everything working time or not all workers at the same time be at the workplace, this is determined by the employer and this must be indicated in the order.

And yes, this will affect payments, because the average earnings are calculated from 12 months to the month of the event, I suggest you study this article on this topic

http://taktaktak.org/document/12936 In what cases can the payment of an average salary to an employee be less than his salary

If he is offered an annual vacation, then it is better in this case to take an annual vacation, and not just leave.

Solution

Oksana, you can apply to the employment service at least the next day after the dismissal, if you have everything Required documents(passport, work book, document confirming qualification, certificate of average wages and individual program rehabilitation, if there is a disability). The minimum unemployment benefit is 850 rubles, the maximum is 4900 rubles, excluding the regional coefficient. What will you have, it will be possible to say only upon presentation of a certificate of average salary. Here on the site it is pointless to guess. In general, the sooner you contact the SZ, the better. If you quit due to the reduction or liquidation of the enterprise, you must contact the SZ within 2 weeks.

How to choose a method of dismissal of "extra" employees
Why layoffs are risky
Is it possible to provide for the amount of "compensation" in the employment contract

Downsizing or downsizing: there are many risks involved in a time-consuming procedure

The procedure for dismissal with a reduction in staff and the number of employees is the same. This procedure is multi-stage, and skipping one step may give the employee a chance to subsequently challenge the dismissal in court and be reinstated with payment of compensation for forced absenteeism in accordance with part 2 of article 394 of the Labor Code (paragraph 29 of the decision of the Plenum of the Supreme Court of the Russian Federation dated 17.03.04 No. 2). That is, the slightest oversight can lead to additional costs instead of the planned savings.

Verification of preemptive right is required in two cases. Firstly, when the number decreases (out of several employees in the same position, some must be fired, and some must be left). And, secondly, when a certain position is reduced altogether, but the company remains almost homogeneous in terms of the content of the labor function of the position, otherwise named in the staffing table.

First of all, the criteria that determine the preferential right of an employee to "immunity" in case of staff reduction are higher labor productivity and qualifications (part 1 of article 179 of the Labor Code of the Russian Federation). If higher qualifications can be confirmed by the presence of specialized education and longer work experience, then labor productivity in some specialties is difficult to measure. Meanwhile, the lack of a clear justification for why this particular employee was fired (which makes him worse than those left) may lead to the recognition of the dismissal as illegal.

Therefore, if management wants to give preference to a particular employee, but his qualifications cannot be called higher with certainty, then it is necessary to consider criteria for comparing the productivity of this employee with others, taking into account the specifics of their activities. The results can be presented in the form of a comparative characteristic.

It seems that in order to establish these circumstances, companies should request from all employees whose positions are supposed to be reduced documents on the composition of family members, their age and social status (do they work or not, and if not, for what reasons - retirement age, disability etc.). With massive layoffs, this is a very laborious process. Since the family circumstances of employees may change by the time of dismissal, it is better to double-check the data immediately before the layoff for reliability.

In the notification, it is also necessary to offer the employee all the vacancies available to the company both in terms of his qualifications and in lower and lower paid positions (part 3 of article 81 of the Labor Code of the Russian Federation). If the company has branches and representative offices, then the employee must be offered work for vacancies within the "same locality". For example, for all branches within the same city and its region (determination of the Supreme Court of the Russian Federation dated 03.11.06 No. 5-B06-94). If there are no vacancies, then this should be directly written in the notification.

Step three: dismissal and payment of compensation. The head of the company issues an order to reduce the staff or number of employees and approves a new staffing table (form No. T-3, approved by order of the State Statistics Committee of Russia No. 1 dated 05.01.04).

Orders are also issued for the dismissal of warned employees (parts 1, 2 of article 84.1 of the Labor Code of the Russian Federation), the corresponding entries are made in their work books.

For example, an employee was fired on November 30, 2008. I got a new job on January 19, 2009. On the day of dismissal, he is entitled to a severance pay in the amount of the average monthly earnings. In addition, the company will have to pay for the period from December 31 to January 18. If the employee in our example does not find a job after two months after the dismissal (up to January 31), then the company will have to pay the second month in full.

If in the third month from the date of dismissal, the former employee did not go to work, then the company pays the average monthly salary for this month according to the decision of the employment service. But provided that the employee applied there within two weeks after the dismissal. In addition, exceptional reasons are required for payment for the third month - for example, the absence of any other sources of income in the family of a former employee (ruling of the Federal Arbitration Court of the Volga District of 07/05/07 in case No. A12-20261 / 06). Otherwise, the company has the right to challenge the decision of the employment service in court as a non-normative act.

An employee can be fired even before the expiration of two months after the warning, provided that he has given written consent (part 3 of article 180 of the Labor Code of the Russian Federation). However, in this case, he is entitled to additional compensation - for the period after the dismissal until the day when two months expire from the date of the notice of dismissal (question 18 from the Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the first quarter of 2007, approved by the decision of the Presidium of the Supreme Court RF dated 30.05.07).
Dismissal by agreement of the parties: safe, but requires the consent of employees

Dismissal by agreement of the parties (Article 78 of the Labor Code) and dismissal of one's own free will are not identical concepts. In the first case, both parties, and not just the employee, express their will regarding the termination of the employment contract. Therefore, after signing the agreement, the employee cannot then change his mind and refuse to quit, as in case of dismissal of his own free will (part 4 of article 80 of the Labor Code of the Russian Federation).

The fact is that this payment is not named in the Labor Code and is associated with the termination of the employment contract, and not with wages. In fact, this is a moot point. For example, the Ministry of Finance of Russia believes that compensation can be included in expenses if it is provided for by an employment contract (letter No. 03-03-06/1/546 of September 26, 2008). However, the courts still support the tax authorities (decisions of the federal arbitration courts of the Moscow District dated April 16, 07 in case No. KA-A40 / 2100-07, of the Far Eastern District dated December 12, 07 No. F03-A24 / 07-2 / 5014).

If the company has a union, it must also be warned about the reduction in staff

The employer must notify the trade union in writing of the upcoming reductions no later than two months before the start of the relevant events, and if the reductions are massive, three months in advance (part 1 of article 82 of the Labor Code of the Russian Federation). According to the ruling of the Constitutional Court of the Russian Federation of January 15, 2008 No. 201-O-P, “the beginning of the events” is considered the beginning of the termination of employment contracts with employees. That is, it is necessary to notify the trade union simultaneously with the warning of employees, and if mass layoffs are coming, then a month before notifying employees.

Which exit option to choose

Grounds for dismissal	pros	Minuses	When is the best time to use
Downsizing	1. The employee is not entitled to refuse dismissal (initiative of the employer) 2. Compensatory payments reduce the income tax base	1. Complexity and duration of the procedure 2. Labor intensity (requires the execution of a large number of documents) 3. Danger of contestation (any oversight can lead to the reinstatement of an employee) 4. Cost (payment for two months of work plus compensation, which can reach the amount of payment for three months)	1. When the likelihood of a challenge is low (preemptive right to stay at work does not apply at all, there are no vacancies, employees have signed a notice of an upcoming reduction) 2. When an employee refuses to leave by agreement of the parties 3. When it is fundamentally important for a company to attribute compensation to expenses for tax purposes
Agreement of the parties	1. Quick and easy procedure 2. The probability of challenging the dismissal is practically reduced to zero 3. Compensation is not limited by the minimum limit	1. Possible only with the consent of the employee 2. Compensation payments - only at the expense of net profit	1. When there is a high risk of challenging a layoff (for example, it is difficult to determine who has the advantage of staying at work) 2. When the employee did not sign the notice of the upcoming reduction (higher compensation can be offered) 3. If it is more important to carry out layoffs quickly than to save on compensation

The untold story of one wrong contraction

Ruslan Konorev, an attorney at the Moscow Bar Association Knyazev & Partners, shares his experience:

“I represented in court the interests of a former employee of one big company, which was reduced. The company made comparative characteristic this employee with another who held a similar position. It followed that my client was less productive. We proved that in addition to my client, four other people in the company, despite the different titles of their positions, performed the same functions. Even their salaries were the same.

Through the court, we simply demanded from the defendant job descriptions these employees and the terminated employee. The testimonies of employees and the plaintiff himself helped. Because the company did not compare my client's productivity and skills to those of the four employees when they fired, they did not fully determine whether my client was eligible for preferential retention. Consequently, Article 179 of the Labor Code was violated. The employee was reinstated."

The reduction must be justified. For example, when labor disputes on this matter are considered in court, evidence is needed that the enterprise is really transforming or changing its profile and does not need employees with such qualifications. But even in this case, the hirer is obliged to offer the employee another place of service. Only if there are no vacancies or the worker does not agree to a retraining, the employer can dismiss the redundant employee.

The procedure is not fast and must be carried out clearly. So, the staff must be warned about the reduction at least 2 months in advance. Dismissal before this period is prohibited. amount to an amount not less than the average monthly earnings.

There are a number of employees who can be fired in this way only with the complete liquidation of the enterprise:

you cannot fire an employee who is on vacation or on sick leave;
, as well as single mothers with a child in their arms up to 14 years. The same applies to an employee with a disabled child;
minors are fired only as a last resort, and the hirer is obliged to find a new job.

Rules and principles

With a reduction, the employer, focusing on the benefits for the enterprise, leaves employees more qualified and efficient. Under equal conditions:

family people if they contain more than 2 dependents;
persons who are the only earning worker in the family;
employees who study on the job at universities;
combatants, war invalids, as well as former military personnel military service. For the latter, there is a time limit - such a benefit is valid only for 2 years from the moment of leaving military service;
employees who have earned Occupational Illness or injured at the enterprise;
employees who have a long continuous experience in this particular organization;
authors of patents, inventions, rationalization proposals.

Reduction is a lengthy and costly procedure for the hirer. If possible, the employee should not be fired, but placed in a job, and compensation should be paid when he leaves. The latter can also intervene and demand that the list of the reduced ones be changed.

Dismissal by agreement of the parties is a bilateral voluntary agreement to terminate the employment relationship. In fact, this is very tricky question and may be completely disadvantageous to one of the parties.

The only basis for dismissal by agreement is the voluntary consent of the employee. To testify to this, a document signed by both parties is drawn up. It stipulates the terms of the employee's departure, the compensation paid, if offered, the conditions for transferring duties to another employee, and so on. In most cases, this option is much more profitable for the employer, since it allows you to dismiss the employee very quickly and not pay compensation.

The fact is that in this case, the payment is not provided for by law and its size is not specified. So compensation can only be achieved by refusing the agreement. Sometimes this is enough.

Difference

The difference between the two methods of care is quite significant:

in case of reduction, the employee is warned 2 months before the dismissal. When leaving, by agreement of both parties, an exact date is agreed - it can be either tomorrow or in 2 months;
in the first case, the worker is obliged to pay compensation, which is stipulated by law. In the second, the payment is the result of the contract and it may not be at all;
after the reduction, the employee is registered on the stock exchange and after 9 days receives the status of unemployed and due payments- the amount corresponding to the average salary for 3 months. A person who retired by agreement of the parties receives unemployment benefits only after 3 months;
it is forbidden to dismiss a single mother or a pregnant woman during a reduction. The agreement allows this possibility, which is very beneficial for the hirer.

Which is better - dismissal by agreement of the parties or by reduction

Both reasons for termination labor relations have their advantages and disadvantages for both parties. In general, dismissal by agreement of the parties is usually more profitable for the hirer. But for the employee there is no single answer.

For an employee

To evaluate the profitability of a particular solution, you need to take into account both the position held and the conditions collective agreement, if any, and employment prospects.

They warn about the reduction in advance and do not have the right to dismiss the employee if the order to do so appeared later. With the agreement of the parties, the departure is stipulated in the document on termination of the contract. There are many nuances here: in 2 months you can find yourself a new job if the alternative proposed by the manager does not suit you and the employee does not intend to stay. On the other hand, with an agreement on the term of care, it is also possible to agree. As a result, the choice is made based on the nature of the hirer.
Payments under the agreement are not provided for by law, that is, compensation remains on the conscience of the entrepreneur, as well as its size. Again, the decision of the issue depends on the character and decency of the employer. With a reduction, the payment is approved by law. The amount for unused vacation is paid in both cases.

There is another option: if a collective agreement was concluded during employment labor contract, which stipulated payments upon dismissal by agreement, then the hirer is obliged to provide compensation. Then both solutions are equally beneficial to the employee.

With the reduction, the employee at the Labor Exchange immediately receives a status. Payments - in the amount of average earnings, are accrued from the 9th day after registration. Under the agreement, payments are due only after 3 months. However, if the employee has already found a job, he is not interested in registering on the stock exchange, and it is more profitable for him to quit by agreement. If a person decides to rest, then it is preferable to wait for the contraction. As for persons who are not subject to reduction, for them dismissal by agreement is disadvantageous from all sides. It makes sense to agree to it only when a new job is found and suits the employee.
Another nuance: by tradition, an entry in the work book about dismissal by agreement is more prestigious than a notice of staff reduction.

For boss

In many ways, dismissal by agreement is more beneficial for the manager. However, there are exceptions.

Reduction is a lengthy procedure and requires justification and even evidence in its necessity. In addition, even with a positive decision, it is required to retain employees and pay salaries for at least 2 months. By agreement, the employee can be fired the next day.
In case of reduction, the tenant must pay compensation, the amount of which is stipulated by law. In addition, for the period of the search for a new job, the employee retains the average salary and is paid within 3 months if the employee who quit does not find a job earlier. In fact, the hirer is obliged to pay the employee 2 salaries and severance pay. Upon dismissal by agreement, the employer has no such obligations.

An exception is the situation when, during the employment of an employee, a collective labor contract was concluded, in which this moment was stipulated. In this case, the tenant is obliged to make payments.

During the reduction, it is impossible to dismiss several categories of workers. With an agreement, this issue loses its relevance, and even the trade union, with which it is necessary to negotiate candidates in the first case, will not be able to protect the employee. No later claims will be considered in court.

The benefits of dismissal by agreement of the parties are described in this video:

Benefit payment

In case of reduction, the amount of compensation and the procedure for obtaining it are stipulated by law. Regardless of the terms of the contract, the employee is paid an amount equal to the average monthly salary. If within 2 months the former employee does not find a place of service, then the hirer is obliged to pay a second allowance. In exceptional cases, 3 is also charged.

The amount of benefits may vary depending on the category of the dismissed:

skilled workers may receive higher compensation, but only if such a decision is made;
seasonal workers receive compensation equal to only two weeks' wages;
an employee working at the enterprises of the Far North is paid compensation within six months if the latter is not employed during this time;
the amount of compensation for managers reaches three times the salary;
if the employee entered into a contract for 2 months, no payments are made.

The benefit is provided to the employee on the day of dismissal along with compensation for unused vacation. The second allowance is paid on the basis of the application of the employee with a copy attached to it. work book, indicating that the job was not found. Payment for 3 months is made by decision of the employment service.

The amounts are transferred on the days when the company pays the salary. If the benefit is delayed, interest must be charged.
When leaving by agreement of the parties, compensation, if agreed, is paid once on the day of dismissal.

The choice of the method of dismissal is not an easy question. To solve it with the maximum benefit for yourself, you need to carefully weigh the pros and cons.

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