Dismissal during the reorganization of the enterprise is not always possible and must be carried out in accordance with the requirements defined by law. Ordinary workers in most cases cannot be reduced if they themselves do not want to. In this case, the dismissal of management and deputies is an acceptable measure.
Reorganization Forms
Companies in the process of development can change their organizational and legal form, open subsidiaries, join another structure, etc. Each of these changes can be attributed to the reorganization process.
According to the law, changing its organizational form, a legal entity has the opportunity to choose one of the following options:
- Merge. Several legal entities are combined into one. The companies involved in this process cease to exist as a completely new organization is formed. The merger can be considered completed only after the registration procedure occurs.
- Selection. A legal entity does not cease to exist and acts as a base for the creation of new companies. Data on the latter are recorded in Rosreestr. Moreover, organizations are defined as independent.
- Joining. The company merges into another company and ceases to exist. Such a reorganization process is considered completed when the data on the original company are recorded in Rosreestr.
- Conversion. The essence of changing the form of a legal entity is to create a new company based on the old one. It is about one organization.
General procedure
Dismissal during the reorganization of the enterprise is a measure that the owner of the company cannot use independently, without taking into account the position of the employees themselves.
According to the Labor Code, employees must retain their labor rights and position even after changing the legal form of the company. The exception in this case is the director with his deputies and the chief accountant.
For any kind of reorganization, management is obliged to notify employees of upcoming changes. After employees receive the appropriate notification, they will be able to make decisions as to whether they should stay in the transformed organization or not.
Situations are also possible when, as a result of a change in the form of a company, some positions become redundant. In this case, a reduction is inevitable.
The very process of dismissing employees during the reorganization of the enterprise can be divided into several stages:
- Notification of employees about the beginning of the process of changing the form of a legal entity. The most suitable method in this case is a written notice with the column “acquainted”, in which the employee will have to put his signature. In such a document, it is necessary to indicate the specific form of reorganization, the name of the new company and pay attention to the fact of the change of ownership. Also, information about the rights of employees and the possibility of dismissal at their own request should be placed in the notification.
- Receive application. Specialists who choose to quit must draw up their decision in writing and provide it to their superiors. The document may have a free presentation format indicating the reasons for the applicant's departure.
- The publication of the order of dismissal. If the reorganization process takes place in a large company, then it is advisable to issue a general order after written decisions of employees on dismissal or continued work in the new company are received. 2 months are enough to collect all applications. But it is important to take into account the fact that the employee who at the last moment changed his decision in the direction of continuing cooperation cannot be dismissed, despite his first statement.
- Record in work books. This must be done after the dismissal order is issued. Specifying the reason, you need to refer to Art. 77 shopping mall.
- Issue of necessary documents. This is a work book and a certificate of average earnings. If the employee requires it, then he needs to provide a 2-personal income tax certificate.
Payouts
Providing the necessary documents is not all that needs to be done in case of dismissal due to the reorganization of the enterprise. Payments paid on time or issued by management are an important condition for the reduction process. This should be done on the last day the employee is in his position.
Professionals who have decided to quit need to pay compensation for unused vacation and wages for the days that have been worked out.
At the same time, there is no need to pay severance pay and earnings for the period of employment. An exception is possible only if there are relevant clauses in the collective agreement.
Who should not be fired
As a result of changes in the legal form of the enterprise, some positions may no longer be necessary. Or the need for the same number of jobs within a specific work profile will disappear.
In such a situation, dismissal in connection with the reorganization of the enterprise is possible, since staff reduction is a necessary measure.
But there are those categories of employees that cannot be reduced no matter what changes have occurred in the company. We are talking about these groups of citizens:
- guardians and parents of children with disabilities;
- mothers on parental leave;
- employees who did not leave their sick leave (regular leave counts as well);
- single fathers or mothers;
- pregnant employees.
If the previous number of specialists of one profile is no longer required and it is necessary to reduce several people, then it is necessary to leave in the company first of all family people and highly qualified workers.
Dismissal of a pregnant woman during the reorganization of the enterprise
The situation with women bearing a child is clear - they cannot be reduced. This rule applies even if duplicate posts arise.
In such a situation, management has two alternative options:
- Reduce a similar position. If you cannot dismiss a pregnant woman, then you can remove from the work team of the company to which the enterprise joins a specialist with the same profile. So that the dismissed employee does not file a complaint, the functional position of the pregnant employee should be slightly changed. Next, you need to get the documentary consent of the woman to transfer.
- Offer dismissal by agreement of the parties with compensation (payment of three official salaries). Such a decision would cost the company less than paying the remaining employee.
But at the same time, it is impossible to exert pressure on the employee, forcing her to make a decision favorable to the new enterprise. Dismissal during the reorganization of the enterprise in the form of transformation or any other should be exclusively voluntary. Especially when it comes to a pregnant employee.
Important process features
There are a number of nuances regarding dismissal during the reorganization of the enterprise, which are important to consider.
The employer must remember the following rules:
- Notification of a planned reorganization. It should be received by all employees, without exception, even on sick leave or on vacation. Moreover, this should happen no later than 2 months before the moment of changing the form of the enterprise.
- A ban on forcing an employee to sign documents. The management of the company is beneficial for the employee to quit at his own request. In this case, there will be no need to pay compensation. But you cannot force an employee to sign such a statement. If there is evidence of pressure, the employee can sue the company.
- Providing alternative vacancies. It is possible that in the staffing of the new company there will be no position for specific specialists who worked at the previous enterprise. In such a situation, the management is obliged to offer the employee all available vacancies that match his experience and qualifications.
- The ban on dismissal during the reorganization of the enterprise before the start of the process of changing the form of the company.
It must be understood that in case of violation of any of the described rules by employees, an application may be filed with the court.
Merger
This term is used to describe the connection of several legal entities into one. That is, the new company will possess the resources of all the enterprises that took part in the process. This format of changing the structure of the organization significantly increases its competitiveness and, as a result, profitability. For this reason, the need for downsizing is unlikely to arise.
And if it is not planned to dismiss workers in connection with the reorganization of the enterprise, then you do not need to notify them of anything.
At the same time, employees can leave the company of their own free will, if they are not satisfied with the terms of the employment contract.
Joining
In this case, the companies that have become part of the main legal entity cease to exist.
With this form of enterprise reorganization, the dismissal of employees is not provided, and the need for notification of employees also does not arise.
But there may be exceptions when, after completing the accession process, you have to reduce staff. In such a situation, it is necessary to notify employees of planned changes 3 months before the time when the contract expires.
If workers disagree with the new working conditions, they can leave by writing a statement.
Management team
When reorganizing an enterprise, it is not necessary to dismiss the director. He can be offered other leadership positions. Brand new jobs may also appear.
But if dismissal is necessary, then it is made according to general rules. That is, directors and deputies need to be notified in advance of the reduction, and then offer alternative options.
If the new company has a different owner, then managers can be fired on the basis of Art. 75 Labor Code of the Russian Federation. Moreover, the size of payments and compensation should be higher than that of ordinary specialists.
Summary
Features of the issue of dismissal in the event of a reorganization largely depend on the type of process (merger, transformation, etc.). At the same time, the state protects vulnerable categories of citizens, blocking the possibility of their reduction. For its part, the company is obliged to warn employees of the planned dismissal and prepare all the necessary documents, payments and compensation.