Dismissal upon liquidation of an LLC or other legal form is a rather complicated procedure. In its implementation, it is necessary to take into account many nuances and prevent a violation of legislative norms. Let's look at how to dismiss workers during the liquidation of the organization.
Basic information
Dismissal during liquidation is, in fact, a procedure that covers the entire staff of the enterprise. However, it is carried out in relation to each employee individually.
The key regulatory act governing the dismissal in connection with the liquidation of the organization is the Labor Code. In addition, there are by-laws and local documents of the enterprise itself, fixing the rules of the procedure.
Many employers believe that the dismissal of workers in connection with the liquidation of the organization is just a formality. In fact, this is completely wrong. It is impossible to treat dismissal as a formality, otherwise violations cannot be avoided.
Supervisory structures are very demanding during inspections. Dismissals during the liquidation of city-forming and large enterprises are especially strictly controlled. The fact is that when a large number of workers are released, there is a risk of increasing unemployment in the municipality. Accordingly, the local budget will receive less profit, which in the end will negatively affect the development of municipalities.
At the same time, small enterprises are also under control. Legislation today secures a number of important guarantees for employees regardless of the legal form of their organization, position and other circumstances. If the dismissed citizen considers that the procedure was carried out with violations, he has the right to apply to the labor inspectorate or court for the protection of his rights.
General rules
What should be the dismissal during the liquidation of the organization? First, let's say a few words about the liquidation itself. What is she like? Liquidation, in fact, is the termination of the enterprise. The need for this may be due to various reasons, including the bankruptcy of the organization. Consequently, the liquidation is the basis for the dismissal of employees on the initiative of the employer.
The release of employees is carried out in accordance with paragraph 1 of paragraph 1 of Art. 81 shopping mall. Moreover, the norm is valid without any restrictions. This means that in other cases it is impossible to dismiss pregnant women on maternity leave, sick leave, etc., and upon liquidation, it is possible and necessary to dismiss everyone.
For dismissal upon liquidation of the organization, there is no need to obtain the consent of the employee or representative of the union.
Stages
Before starting the dismissal procedure in connection with the liquidation of the organization, the executive body of the enterprise or the court makes a decision to terminate the activity. After that, the responsible person is appointed - the liquidator.
To speed up all upcoming processes, it is recommended that an action plan be prepared. One of its mandatory points should be the dismissal of workers. Liquidation of an enterprise is not a quick procedure. However, the release of most employees can take place in one day. Some employees, however, must be left for some time. In this case, the head sends the notice of dismissal first to most employees. The rest of the employees are notified a little later, but so that the deadlines established by law are met. The dismissal of the entire state is planned for one day, after which civil contracts are concluded with the necessary employees until the end of the liquidation measures. Experts recommend discussing all the nuances with employees in advance and enlisting their support.
Union involvement
In accordance with the rules governing the activities of trade unions and their interaction with the employer, upon dismissal upon liquidation or reduction of staff, the employer must notify the union. Representatives of this organization participate in negotiations with the employer, protect the interests and rights of workers. The head of the enterprise must send a notice for 3 months. until the date of liquidation.
Employee Notification
When sending notices, the employer must be guided by the provisions of paragraph 1 of Part 1 of Art. 81 and part 2 of article 180 TK. The legislation does not clearly indicate the period of notice. According to general rules, employees must be notified at least 2 months before the date of dismissal. It is necessary to notify personnel so that later this fact can be confirmed. As a rule, notifications are handed to employees against signature.
Some employees may wish to quit before the expiration of a two-month period. In this case, they need to convey a statement to management.
The employer can also initiate early dismissal upon liquidation of the organization. However, in this case, he needs to obtain the consent of the employees in writing. This also applies to the dismissal of the director. Upon liquidation, the issue of the release of employees of the administrative apparatus is usually dealt with by either the liquidator or the owner of the enterprise.
It should be noted that if there is a desire of the employee to quit ahead of schedule in the event of an employer's refusal, release is impossible. We'll have to wait for the expiration of a two-month period.
Notification of the Central Employment Center (Employment Center)
Notification of the territorial body of the employment service is the obligation of the employer. The notice must also be sent in 2 months. before the date of dismissal.
As Rostrud explained in his letter of September 26, 2016, a notice can be made in free form. In practice, the basis is usually taken the form approved by the Government in Decree No. 99 of 02/05/1993.
For more information about the rules and the form of notification should be found in the relevant territorial office of the Central Authority (Rostruda).
Documenting
The normative basis for dismissal is the order of the head of the organization. this directive is usually issued for the entire staff. However, the law does not prohibit issuing orders separately for each employee. In any case, the staff should be familiar with the order for signature.
If for some reason the employee does not want to sign the familiarization with the contents of the order, the manager draws up an act in which this fact is recorded. This act must be signed by a dissenting employee. If the employee refuses here, the manager must write about this in the act.
The order indicates the event - the dismissal, its reason, as well as an order to conduct settlements with the employees to be released.
Information about the dismissal is also entered in the employee’s personal card and his work book. The paperwork is handled by the personnel department of the organization.
Nuances
After dismissal, the employee has the right to request any documents relating to his labor activity. To do this, he sends a written request to the employer.
In some cases, citizens are irresponsible about their work documents: they are in no hurry to pick up a work book, sign their receipt, etc. In order to avoid such problems, it is advisable to send an employee a notification by mail indicating the place, date and time of receipt of the documents or a letter about the need to give consent to send papers by mail. With this notice, the employer will insure himself against participation in a controversial situation.
Documents not received by their owners are subject to transfer to the territorial archive. If a former employee wishes to register with the employment center, he will need personnel documents. For registration in the Central Office, a salary certificate for the last 3 months is also required. This document is being prepared within three days from the date of writing the application.
Financial calculations
Special attention should be paid to dismissal upon liquidation. The legislation establishes a special procedure for calculating amounts. Moreover, the norms provide for several types of payments. Conventionally, they can be divided into main and additional.
The first group includes all payments related to labor activity. It is, in particular, about salary, other payments established by law (payment of sick leave, unused vacation, travel, maternity, etc.). these payments upon dismissal upon liquidation of the organization are calculated in accordance with the number of days worked or vacation (business trip).
Additional amounts include all other amounts. They relate directly to the fact of the dismissal of employees from their posts. These amounts are a kind of compensation for dismissal. With the liquidation of the organization, many citizens may find themselves in a very difficult situation. The employer must provide the dismissed financial assistance. After all, not everyone can quickly find another job. Therefore, the law prescribes to keep the average monthly earnings for dismissed workers for two months, and if necessary for three months.
When filling out documents on dismissal, the employee receives severance pay. Its size is also equal to the average monthly salary.
In order to maintain payment of earnings for three months, a citizen must register with the Central Office and submit an application to the enterprise with a request to keep his salary. Documents confirming the lack of work are attached to it.
Amounts for unused holidays, unpaid business trips, maternity, unpaid sick leave, etc., are added to the severance pay and average monthly earnings upon dismissal. Full payment is made on the day the labor book is issued.
Dismissal in connection with the liquidation of the post
Staff reduction very often becomes a necessary measure not only for commercial, but also for budget organizations. This can be due to a variety of reasons. So, for example, demand for a service or product may decrease, budget financing may decrease. The reason may be automation of production or a crisis in the industry.
Reduction of staff should be considered an exception to the staffing of individual posts. This procedure differs from a reduction in the number of personnel - a decrease in the number of staff units. In other words, the posts themselves remain, but the number of employees decreases. For example, it may be necessary to reduce the number of accountants. At the same time, for the employees themselves, there is no difference between the procedures - in both cases there will be a dismissal.
When the post is liquidated, the manager must follow the procedure established by law.
First of all, it is necessary to form a new staffing table and issue an order approving it. After that, another order is issued. It indicates which posts are removed from the schedule and from what time.
If there is a trade union organization, the head of the enterprise is obliged to notify him of the forthcoming release of workers three months before the appointed date. Not less than two months later, the notice is sent to the territorial employment center.
After that, each dismissed employee is notified in writing of upcoming events. Workers should be notified two months before the reduction.
Employer Responsibilities
In accordance with the provisions of Articles 81 and 180 of the Labor Code, employees subject to reduction, the employer must offer other vacancies or work in another unit of the enterprise. This offer is in writing.
It should be noted that a vacancy or work must fully comply with the qualifications of the employee. If this was not found, then the employer can offer a lower position or a lower-paid job suitable for a citizen taking into account his state of health. If the labor or collective agreement stipulates the obligation to offer a vacancy in another locality, then the head of the enterprise must fulfill it.
A position that is present in the staff list is recognized as vacant, but there is currently no labor contract on it.
If a citizen agrees to another position or job, the manager issues a transfer order. An additional agreement is drawn up for the employment contract, which sets out all the working conditions at the new post. In addition, a record of the transfer must be made in the citizen’s work book.
If the employee refuses another position or work, then his refusal is recorded in writing.
Features of dismissal
In accordance with labor law, when a worker is released, the manager must take into account a number of restrictions. So, according to the Labor Code, persons on sick leave or on vacation are not subject to reduction. The employer must wait for the employees to go to work. The release date will be considered the date of dismissal.
The procedure should be formalized in accordance with general rules. In the workbook, the personnel department employee writes “Dismissed due to layoffs”.
Financial questions
Upon liquidation of the position, employees are entitled to payments. In accordance with Art. 178 TC, employees receive salaries for the past month, compensation for unused vacation days, severance pay. The value of the latter should be the average monthly earnings. If seasonal workers are reduced, then the amount of the average salary for two weeks is paid.
If an agreement is concluded between the employee and the employer for a period not exceeding 2 months, then the severance pay is not provided, unless otherwise provided in federal law, the collective agreement or the agreement itself.
Until employment in a new place or in another position, the average salary for a reduced employee is maintained. At the same time, the term for job search should not exceed 2 months. from the date of dismissal. Only in exceptional cases can this period be extended by a month. Accordingly, the period for payment of compensation will increase.
If a part-time employee is reduced, then he is also paid a severance pay in the amount of the average monthly earnings. Moreover, such an employee does not receive compensation for the period of employment, since he has a main place of work, where he receives a salary.
Cancel abbreviation
The head of the company has the right to withdraw the notice of dismissal before the date of the planned events. Cancellation may be related to:
- Failure to comply with the dismissal of employees.
- Identification of errors in previously published documents.
- The adoption of a decision to reduce the person who did not have the authority to do so.
- Improving the financial condition of the enterprise.
- Increased demand for services, products.
Cancellation of the decision to reduce is made out by order of the head and is sent to all employees for review.