Payments for dismissal: Basic rules. What is the difference in abbreviation and by agreement of the parties: what is better and more profitable for the employee
Reducing staff in the organization or enterprise is a sufficiently unpleasant fact for workers. In such a situation, people are inclined to look for "miscarius of ill-wishers" and for this reason they are extremely wary perceived the proposal of the leadership to conclude a document on the agreement of the two parties, which will clarify all the nuances of the upcoming dismissal.
To understand this issue, it should be more closely examined by the procedure for termination of the employment contract in both cases, and thoroughly weigh all the positive and negative points for both stakeholders (employer and its employee).
Focusing, check if you have no days of unused vacation - the employer must compensate them. You can read more in.
The main differences of two types of dismissal
To finally make a choice in favor of this or that type of termination of the employment contract, you can compare the main points of the procedure (sending notifications, and the possibility of their recall, the deadlines for sending, accrued settlement funds).
It should be noted that dismissal by agreement of the parties (EPS) appeared in the Log of the Russian Federation since 2001, and its precedents took place since 2002. However, this formulation of a legal framework for dismissal today has the most law enforcement practice as a basis for dismissal. Moreover, it is her, let's say directly, prefer and personnel and leaders of commercial companies.
Attribute of the contractual form of the vehicle
Dismissal by agreement of the parties (Article 77 of the Russian Labor Code) is often found in connection with the distribution of the obligations on the Russian labor market. This form of contractual relations between employers and personnel is an indispensable element of the market system.
Is it justified by the leadership in the labor market? Is the ease of interruption of labor relations inherent in this form of dismissal positive: employer-employee? This is a controversial question. According to official statistics, the unemployed is 2-3% of the allocating population.
These data are objectively understated worldwide. The fact is that the labor exchange is not all unemployed for various reasons. Therefore, the generally accepted fact is that the data of the international organization of labor 4-5 times higher than official unemployment statistics.
And absolutely leading on the interruption of labor relations is the dismissal of the parties. Features of this type of dismissal in the conditions of the existence of the labor market are clearly visible in comparison with other forms of termination of labor relations.
To reduce the state and by agreement of the parties
It is well known that dismissal when reducing the state is a satellite of economic crises and their consequences - optimization of the staffing structure of the organization. His legal justification (see paragraph 2 of Article 81 of the Russian Labor Code) is quite organizational and difficult and laborious.
The employer is obliged to warn the personnel reduced in this way and, in addition, to offer candidates for dismissal alternative staff position (we note that the existing staff is often characterized by a shortage of vacant posts).
It must also identify the personnel to which legislation guarantees the preferential right to remain in the state and implement it. Therefore, some employers, optimizing their staff, try to replace the "Reduction States" "Agreement of the Parties", reaching for a company of certain benefits to the detriment of the dismissal.
Paragraph 1 of Article 77 of the Russian Labor Code offers a less institutionalized way - dismissal by agreement of the parties. This method of interruption of labor relations implies a short time, joint regulation of the process of dismissal by the management of the company and the employee. At the same time, the administration does not require adherence to the above formalities and the participation of the trade union organization.
At your own accord and by agreement of the parties
The absence of a period of mandatory development is distinguished by the method under studying by the dismissal on his own desire, in which the application writes only the employee itself.
When dismissal at his own request (UPP), such a statement is drawn up over fourteen days before the agreed date of caring from work. During the aforementioned two weeks, the employee continues to fulfill his previous official duties. He is also entitled to take a vacation for this period. However, even if the employee is in a hospital, will not be considered interrupted 14 days.
Dismissal by agreement of the parties is significantly simplified and relative to the UPP. First of all, the difference lies in the absence of a two-week work - before the date of dismissal. Date of departure from the work contractual, also director stipulates with a dismissed employee by mutual agreement some additional conditions. Labor relationships can be interrupted into a specified and agreed date in advance, even if the employee stays on vacation or on the hospital.
Legal differences of two types of dismissal
Dismissal by agreement of the parties implies the procedure for termination of the employment contract between the employer and the employee, respectively, by Article 78 of the Russian Labor Code. Employers more often use it in cases of labor violations by workers (absenteeism, appearance in the workplace in a state of intoxication, non-fulfillment of official duties). However, even more often this dismissal is initiated by the workers themselves. It, as you noticed, has similar features with dismissal at your own request. However, there are differences (see Table 1)
Table 1. Comparative characteristics of the UPS and the UPS
When analyzing the information contained in the above table, pay attention to the detail: challenge dismissal by agreement of the parties unilaterally can not (in contrast to the UPP). It is accepted at the EPS, therefore it ceases to act by mutual agreement.
At the request of one of the parties, dismissal cannot be prevented. However, if it is carried out by the coercion of the employer, it can be challenged in court. In this case, the employee is restored by the previous post with the payment of average earnings for forced rushing.
Payment of compensation
If there is a dismissal by agreement of the parties, compensation for the unused vacation must be paid to the employee. In addition to her, he is necessarily paid accrued salary for the current month on the last day of work, as well as recorded awards, a variety of surcharges (for service, qualifying). The employee then receives a labor book and a certificate about the average monthly wage.
However, not only compulsory payments promotes the employee's dismissal by agreement of the parties. Compensation in the amount of one salary is often stipulated by the employer in orders for the organization.
The legislation did not establish a certain framework of such payments, therefore, the contractual amount of additional compensation may be established in the agreement of the employer and employee.
It is no secret that this type of dismissal is more beneficial to the employer than the employee. Motivation is well known: the employee cannot independently withdraw the written statement, and the union, in turn, can also not affect this process.
Therefore, the employee who choose dismissal by agreement of the parties, compensation must be considered as a section of the contract with the employer. Federal Law No. 330-FZ dated November 21, 2011 established the procedure for issuing NFFL compensation. In accordance with paragraph 8 of paragraph 3 of article 217, the Russian Tax Code exempt compensation from taxation not exceeding three employee salaries.
Article 178 of the Labor Code regulates the payment of such output benefits. According to her, the provisions on its payment may be included in the collective employment contract. The second version of the regulation of such compensation is negotiated directly in the documents that accompany specific dismissal by agreement of the parties. In this case, in accordance with paragraph 3 of Article 217 of the Tax Code of the Russian Federation, it was not charged from a day off, not exceeding three salaries, and for the regions of the Far North - six salaries.
Decoration of dismissal
The existing practice of registration of such dismissal does not provide any standard documents. However, a preferred design option remains an agreement compiled by a joint employee and an employer. An indication of the desired legal consequences of termination of labor relations due to the mutual agreement of the parties, the dates are accompanied by dismissal by agreement of the parties. Payments to the amount of the output benefit, the transfer time to a new employee of affairs and posts also negotiate. Imagine an example of the aforementioned agreement.
Agreement on termination of the employment contract
Employer - Alpha-Trade LLC represented by Director Pavlova Konstantin Borisovich, acting on the basis of the Charter, and the employee - Merchandiser Selezneva Marina Viktorovna came to an agreement that:
- The employment contract of 21.02.2010 N 35 will be terminated by agreement of the parties.
- The employment contract is terminated on July 20, 2014.
- An employee is paid compensation in the amount of one official salary.
The agreement was drawn up in 2 copies with the same legal force, 1 for each part.
Director Printing Pavlov Konstantin Borisovich
Worker Selezneva Marina Viktorovna
Dismissal Initiator - Employee
However, the proposed design method often may precede the writing of the statement by an employee or the corresponding appeal of the administration to it. At the same time, a single sample, how to write an application for dismissal by agreement of the parties does not exist. Therefore, imagine an example of such a document.
Sample application of employee
Director of Alpha Trade LLC
Pavlov Konstantin Borisovich
Statement
I ask the agreement on your part to terminate with me the employment contract from July 20, 2014, respectively, paragraph 1 of Art. 77 Labor Code (reason - by agreement of the parties).
I consider it expedient to set the output allowance in the amount of two salaries.
Before receiving the consent from you, in writing, I reserve the right to withdraw this statement at any time.
Merchandiser Seleznev
Marina Viktorovna.
Agreement, as an option, may also precede the appeal of the administration, initiating dismissal by agreement of the parties. Sample text is similar to submitted in the application.
Letter administration
Dear Marina Viktorovna!
We invite you to terminate the employment contract, guided by paragraph 1 of Art. 77 Labor Code (i.e., by agreement of the parties) from July 20, 2014
Compensation is established, according to a collective employment contract, in the amount of two salaries.
Director
Pavlov K.B.
Registration of the order for dismissal
Based on the agreement, the head of the organization signs the appropriate order. Dismissal by agreement of the parties is gaining legal force at that moment. Often, together with this order, an order is published on the reception and transfer of affairs and inventory.
Alpha Trade LLC
07/20/2014 № 15-K
moscow
On the dismissal of Selezneva M. V.
Dismiss:
Seleznev Marina Viktorovna, Merchandiser, 20.07.2014 by agreement of the parties (Art. 37 of the Labor Code).
Accounting payments to Seleznev M.V. Monetary compensation in the amount of three salaries.
Reason: Statement by Seleznevaya M.VT dated July 15, 2014.
Director of Alpha Trejd LLC Pavlov K.B.
I got acquainted with the order and agreed Selezneva M. V.
Through such an order, dismissal under the Agreement of the Parties. An entry in the employment record should necessarily mention paragraphs 1 of part 1 of article 77 of the Labor Code.
Should I avoid the wording "Dismissal by agreement of the parties?"
This question is, of course, controversial and associated with myths.
Myth No. 1: The employee dismissed by the consent of the parties is a violator of labor discipline.
Myth number 2: An employee who thus interrupted labor relations, has insufficient qualifications.
The reason for the appearance of these prejudices was the practice of employers to "reduce" under Article 77 of the TC of Related Employees. However, if the employee is confident in his qualifications, as well as in the fact that in another place it is immediately employed, then these myths are insignificant. On the contrary, a person will be able to quickly get a job on the expected work.
Output
Is the USSS are ideal in its existing form as a labor market tool? Based on macroeconomic patterns, its parameters (for example, non-participation in its trade union process) are incorrect at a significant level of unemployment.
For the full effect of such a market mechanism in the labor market, Ideally, we need a growing nature of the economy and a sufficient level of offer of competitive jobs. However, simplified organizational moments, accompanying the EPS, in many cases are preferred for the operational interruption of labor relations. This factor determines its widespread use.
The parties to the Agreement should be borne in mind that in some cases the incorrectly issued agreement and, accordingly, the order for dismissal by agreement of the parties can ignore the payments or benefits due to it. Therefore, it should be foreseen and take into account.
You motivate your choice, such as labor productivity or observance of work discipline. Be prepared if necessary to provide documents that will confirm your rightness, even even a simple characteristic of an employee - otherwise, dismissal may be recognized illegal. The final calculation as in general, while reducing on the last working day, the employer must issue all the necessary documents to former employees and all the funds due on this day, namely:
- wages and premiums)
- compensation for unused vacation days)
- output benefit.
According to the law, the enterprise must pay the abbreviated compensation in the amount of average monthly earnings.
Menu.
How is the dismissal by agreement of the parties in the reduction, and is it worth it at all to try such a procedure? Let's try to figure it out. Labor Code on dismissal under labor legislation, the employer has the right to dismiss his employee only in some cases. One such cases when the employer has an unconditional right to get rid of the employee, is to reduce staff or posts.
Of course, the procedure is not the most simple, but according to the second paragraph 81 of the article, the head of the enterprise or its owner can make the initiator of the termination of the employment contract if the organization is planned to reduce the state or regular units. The difference in reducing first of all it is necessary to note that the reduction of the state and reducing positions is different concepts, although the procedure for dismissal in both cases is the same.
Reduction by agreement of the parties. What payments
This type of dismissal is the most profitable for the enterprise. Agreement How to quit - to reduce or by agreement of the parties? Consider the second option. An employee may go to this type of dismissal for the following reasons:
- interest in the weekend;
- the fear that can be expelled by the article for non-compliance with the discipline in the enterprise.
For the management of the enterprise, reach an agreement with the employee (Article 78 of the TC) is more profitable.
Info
You can free yourself from a disagreeable employee, you do not need to accurately follow the time consuming order of reducing the state. You can dismiss an employee who cannot be touched with the usual reduction. TK RF, Article 78. Termination of the employment contract by agreement of the parties The employment contract may be terminated at any time by agreement of the parties to the employment contract.
Payment of compensation is made in accordance with the agreement at the conclusion of the Agreement.
What is better dismissal by agreement of the parties or to reduce states
Upon termination of the employment contract on the willing of the employer, the reduction of the state in some cases employers have to resort to the process of reducing the staff of employees. What is it and what is the essence of the procedure? The concept should be distinguished:
- state reduction;
- reduced employees.
What is the difference between these two concepts? The staff reduction is the refusal of the employer from the presence of one or more posts in the staff schedule. In other words, the position or positions that existed earlier are eliminated under this process.
Example No. 1. In LLC Omlothechsbyt existed the position of administrator of the reception area of \u200b\u200bcustomers. In the future, there was a reduction in this position and the imposition of the responsibilities provided for on it in the relevant job description, the secretary.
How to quit with reduction and by agreement of the parties
The dismissal to reduce the state or number refers to the dismissal of the employer, therefore, this basis is less "respected" than when the employment contract is terminated by the consent of the parties, the output allowance in the amount of salary primarily reduces those whose labor productivity or qualifications below - respectively, The record in the labor on this basis can significantly reduce the percentage of success with the subsequent employment. Preservation of average earnings within 61 days from the date of dismissal to reduce it is possible to be resigned at any time - at least two months will have to work for another two months. Conservation of average earnings for 3 months, if dismissed The employee will contact the employment service within two weeks, but will not be employed for the employer, the advantages are practically absent.
Payments for dismissal: Basic rules
The ability to agree on an increase in the amount of payments and the choice of the dismissal period. The amounts paid by the employer by agreement should not be less than the amounts that the employee could receive when reducing the state. Otherwise, the employee may not agree to the dismissal. Also, there is no strict limit on time as in the reduction.
There is a specific date of dismissal. That's all the dismissal by agreement of the parties better than the reduction. Dismissal to reduce or by agreement of the parties: What is better? Reduction or agreement of the parties - what is better for the employee? Both dismissal to reduce the state, and in coordination have their own positive and negative sides. When the state is planning to reduce the state, it means its position is not very stable.
How best to quit: to reduce or by agreement of the parties
What about this desire to do? First of all, it is necessary to inform the other side of the agreement. An intention can state his intention in the application and send it to the employer. The latter, having considered the submitted statement, can agree with him or not, in any case, putting the employee who adopted by the decision.
Attention
Employer This offer can make an employee and verbally. But the agreement itself and its conditions must necessarily be reflected on paper. This will serve as a guarantee for both parties to an agreement on unscrupulous actions of one of them.
If the parties decide to change the terms of the agreement or cancel it, such a solution also needs to be taken in writing. In addition, it is necessary to remember that it will not work out unilaterally. To change the terms of the agreement, as for its conclusion, it is necessary to the will of both parties.
Reducing or dismissing an employee by agreement of the parties. what to choose?
If a person after dismissal wants to relax in front of the new labor marathon, it is more profitable for him to leave under Art. 81 of the Labor Code of the Russian Federation (the basic basis is to reduce the number of employees). And if he is going to immediately begin to fulfill his labor duties already at the new job, it is better if in labor as a basis for dismissal will be a st. 78 TK RF. Analyzing the foregoing, it is impossible to say with general accuracy, which of the grounds for dismissal is better: reducing the state or agreement of the parties.
Very large in the resolution of this issue have the provisions of local documents, such as labor and collective agreement. No less weight will have concrete life circumstances in which the employee will have, as well as his wishes.
How is the accrual of payments with a reduction in agreement of the parties?
State reduction This option has the following positive parties:
- An advance warning about the future dismissal gives an employee the opportunity to search for new work in advance.
- The employer is obliged to offer an alternative vacancy if there is a tax on the enterprise.
- The dismissed receives the official status of the unemployed, therefore receives more payments and compensation.
In case of non-compliance with the procedure, the employee may apply to the court with a claim for illegal dismissal. As a rule, the courts allow such disputes not in favor of the employer. However, there are its drawbacks:
- The state cutting procedure is more complex and long.
- on the termination of the employment contract, managers should notify an employee whose position will be reduced, 2 months before the date of the actual termination of labor relations; This makes it possible to work the worker to still work for the benefit of the enterprise (institution) for 2 months, get the RFP and find a new job;
- in connection with the reduction of the state, each released output allowance for the average monthly salary (Article 178 of the Labor Code of the Russian Federation) is paid;
- an average income for the employment period remains for the employed employee, but not longer than 61 days, from the date of termination of the employment contract; This compensation also plues output assistance;
- if a former employee in a two-week term after termination of the contract comes to the employment service, but it will not be more employed, then the average earnings can be maintained behind it and within 3 months from the date of dismissal (Art.
Today, no one will surprise anyone with a reduction in the state of the company or the number of its staff. The procedure for dismissal to reduce multistage and is very stretched in time - 2 months before dismissal, notify an employee about it in writing, to offer the available vacancies, and if there is no or a worker, it cannot take them for any reason, competently dismiss it, observing everything Interests. At the same time, the employee may not wait for the day of the reduction, and to use the right to go before, having coordinated his dismissal with the employer. We learn what benefits he can get in this situation.
Reduction or dismissal by agreement of the parties
As a rule, employees already invited to another employer are going to dismissal under the Agreement of the Parties. The rest of the care in "Nowhere" prefer to wait for the dates of the reduction, while they are guaranteed:
- salary for spent time;
- vacation compensation;
- day off manual in the amount of average monthly salary;
- payments provided for in industry agreements.
In addition, with timely registration in the employment service, the company will pay for looking for a job employee for another 2 months of its search, and in exceptional cases 3rd. For some personnel groups, the search for work is paid 6 months.
And what benefits can receive an employee with a reduction in agreement of the parties? Art. 78 of the Labor Code of the Russian Federation, regulating the procedure of such dismissal, only emphasizes that it is possible to do this at any time. The initiator of such dismissal may be both administration and an employee. Usually, it is advantageous for the company, because it is possible to significantly cut the dates of the reduction process, often saving on the weekend, there is also a benefit and an employee - when receiving proposals from another employer or from the administration to pay the essential amount of "indental".
The dismissal procedure by agreement of the parties begins with submitting the initiator's notification to the other party. For example, an employee can state his proposals in a statement, and the employer is to familiarize himself with it and agree or not. Agreement is drawn up in writing, and is signed by both parties. To change the conditions of this contract unilaterally illegally, it is also possible to cancel or change something in it in writing and with the consent of both participants.
Reduction by agreement of the parties: what payments are put
The employee who dismissed by the Agreement with the administration is relying payments:
- Salary for spent time;
- Compensation for vacation unused earlier;
- Output allowance, which is actually compensated for the loss of work.
Mandatory of these payments are the first two. The payment of the day off is the right of the employer. And it is important that this condition be written in the Agreement, since the law does not oblige the company to pay compensation in such situations. Its size is not limited to the legislative, it can be calculated in the amount of average earnings calculated in the time remaining until the deadline is completed, but can also be installed in a fixed amount. The absence of the payment of the output benefit in the Agreement will pay only a minimum set - salaries and compensation for vacation.
So, choosing a reduction or dismissal by agreement of the parties, each participant calculates its own benefits. Administration Agreement is convenient for the possibility of terminating the employment contract even in cases where the dismissal is prohibited, the employee makes it possible to quit the prospect of obtaining "compensation" before the start of massive contractions. But in practice, the size of payments, even when dismissal by agreement of the parties, in its maximum set is usually lower than the amounts relying on dismissal.
In the context of the financial crisis, most companies reduce the number of employees. You can implement this procedure in two ways. By reducing the number or state (paragraph 2 of Part 1 of Art. 81 of the Labor Code of the Russian Federation) or dismissal by agreement of the parties (Art. 78 of the Labor Code of the Russian Federation). Each option has its pros and cons. Therefore, the final choice is better to do with the assessment of all the circumstances in a specific situation.
Reducing the number or staff: in the labor-intensive procedure a lot of risks
The staff reduction is a complete refusal of one or several posts in the staffing. For example, the company will no longer be such a position as a referent secretary. And the reduction in the number of employees means a decrease in the number of full-time units for a particular position: there were five secretaries-referents, but two will remain.
The order of dismissal when reducing the state and the number of employees is the same. This procedure is multi-stage, and a passing of a single step can give an employee a chance to subsequently challenge the dismissal and recover at work with payment of compensation for the forced program according to part 2 of Article 394 of the Labor Code (paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 17.03.04 № 2). That is, the slightest oversight can entail additional costs instead of the planned savings.
Council in the topic
If vacant positions are also planned to be reduced, it is more expedient to do it before notifying employees. Otherwise, if an employee agrees to a free position, it will have to first translate it, and then begin the reduction procedure again.
Step One: Selection of candidates for dismissal. It is necessary to make a list of posts that management plans to reduce, and workers who occupy these posts. From their number it is necessary to immediately exclude those whom in principle cannot be dismissed to reduce the state (Art. 261 of the Labor Code of the Russian Federation): pregnant women; women having a child up to three years; Lonely mothers with a child up to 14 years old, and if a child is a disabled person, then under 18; Employees raising a child without a mother. From other workers, it is necessary to choose those who have the right to preferential leaving at work (Art. 179 of the Labor Code of the Russian Federation). They are also very risky to fire.
Checking the preemptive right is required in two cases. First, when the number decreases (from several workers on the same position, someone must be dismissed, and someone is left). And, secondly, when a certain position is reduced at all, but the company remains almost homogeneous to the content of the employment function of the position, otherwise named in the staffing schedule.
First of all, the criteria that define the preemptive right of an employee for "inviolability" with the reduction of state are higher 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 profile education and longer work experience, then labor productivity for some specialties is difficult to measure. Meanwhile, the lack of a clear justification, why was fired specifically this employee (what he left worse) may lead to the recognition of dismissal illegal. Therefore, if the management wants to give preference to some specific employee, but its qualifications cannot be called higher, it is necessary to consider the criteria for comparing the productivity of this employee with others, taking into account the specifics of their activities. You can make results in the form of a comparative characteristic.
If the qualifications and productivity of labor are the same, then the choice of candidate for dismissal is carried out by the criteria of the "second stage". Preference is given to this from employees who have one of the circumstances specified in paragraph 2 of Article 179 of the Labor Code. For example, on its full content, no less than two disabled family members or all his close relatives do not have an independent earnings. It seems that in order to establish these circumstances, the company must be requested from all employees whose positions are supposed to reduce, documents on the composition of family members, their age and social status (they work or not, and if not, for what reasons - retirement age, disability etc.). With mass contractions, this is a very laborious process. Since, by the time of the dismissal, family circumstances from workers may change, immediately before cutting for reliability, it is better to repeat the data.
Step Second: Warning of employees about dismissal. Two months before the upcoming dismissal, it is necessary to warn in writing and under the painting personally of each employee (part 2 of Article 180 of the Labor Code of the Russian Federation). Moreover, the two-month term is counted from the day when the employee signed a notification.
An employee's refusal from signing notification can make the entire further procedure illegal. Unlike other personnel documents regarding this warning, the Labor Code does not allow the possibility of replacing the signing of the mark that the employee refused to sign.
When candidates for dismissal were selected on the basis of the absence of the preemptive right to leaving at work on family circumstances, it is better to prevent the possible dismissal of not only their, but also other employees who occupy a similar or similar position, which at the time of comparison were the causes for "integrity." It is just necessary for the case if after two months the circumstances will change so much that it will have to dismiss the wrong who was planned initially.
In notification, it is also necessary to offer an employee all the vacancies available from its qualifications and under the 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 offer work on vacancies within the "one terrain". For example, in all branches within one city and its area (definition of the Supreme Court of the Russian Federation of 03.11.06 No. 5-B06-94). If there are no vacan positions, then you need to write directly in the notice.
Step Three: Dismissal and payment of compensation. The company's head issues an order to reduce the state or number of employees and approves a new staffing (form No. T-3, approved by the Order of the State Statistics Committee of Russia dated January 05/04 No. 1).
Orders are also issued on the dismissal of warned employees (Part 1, 2 Art. 84.1 of the Labor Code of the Russian Federation), the relevant records are entered into their employment records.
On the last day of work, each employee needs to pay not only salary for the last month, but also a special day off manual in the amount of its average monthly earnings, if a higher amount is not established in a labor or collective agreement (Article 178 of the Labor Code of the Russian Federation). If at the end of the first month after dismissal, a former employee will not get a new job, then the company must also pay him the days of "emerdiation" of the second month after dismissal (also in the amount of average earnings). For example, an employee was fired on November 30, 2008. Settled on a new job on January 19, 2009. On the day of dismissal, he shoulded a day off in the amount of average monthly earnings. In addition, the company will have to pay the period from December 31 to January 18. If the employee from our example will not find a job after two months after dismissal (up to January 31), then the company will have to pay the second month entirely.
If in the third month from the date of dismissal, the former employee did not work, then the company pays the average monthly earnings for this month to solve the employment service. But provided that the employee appealed to two weeks after dismissal. In addition, exceptional reasons are required for payment over the third month - for example, the lack of any other sources of income in the family of a former employee (the resolution 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 an abnormative act.
An employee can be dismissed until two months after the warning, provided that he gave written consent (Part 3 of Art. 180 of the Labor Code of the Russian Federation). However, in this case, he has additional compensation - for the period after dismissal before the day, when two months expires from the date of the prevention of dismissal (Question 18 from the review of the legislation and judicial practice of the Supreme Court of the Russian Federation for the first quarter of 2007, approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation from 05/30/07).
Council in the topic
About the upcoming contractions should be reported in writing to the employment service (paragraph 2 of Art. 25 of the Law of the Russian Federation of 19.04.91 No. 1032-1 "On Employment of the Population in the Russian Federation"). It must be done no later than two months before the start of the relevant events, and if the abbreviations are massive - in three months. Failure to comply with this duty in itself cannot cause the subsequent restoration of employees, but the company faces a fine of 3 to 5 thousand rubles for this (Article 19.7 of the Administrative Code of the Russian Federation).
Dismissal by agreement of the parties: safely, but requires the consent of employees
Dismissal by agreement of the parties has undeniable advantages. First, this dismissal is not at the initiative of the administration. So, workers are almost impossible to appeal him in court. Secondly, the procedure is very simple - just to sign an agreement in which to establish a deadline for termination of the employment contract. It is not necessary to inform neither the union or employment service. Finally, on this basis, you can dismiss any employee - the limitations established in Article 261 of the Labor Code, in this case do not act.
Dismissal by agreement of the parties (Art. 78 of the Labor Code) and dismissal on their own desire is not identical concepts. In the first case, our will, with respect to the termination of the employment contract, express both parties, and not just an employee. Therefore, by signing the agreement, the employee cannot then change their mind and refuse to leave, as if dismissal at his own desire (part 4 of Article 80 of the Labor Code of the Russian Federation).
In order to convince the employee to quit the parties to resign, the company usually also pay some "retreats", although in the Labor Code such a duty is not provided. It seems that this payment should be no less than that which the employee can count on the reduction, otherwise it is simply no reason to leave the company by agreement. However, given that the employee's dismissal under the agreement does not need to be prevented in advance, the company will be able to cut his staff faster. So, it does not have to be, as with a reduction, pay the salary of the unnecessary two months before dismissal and contain jobs. But we emphasize that savings are possible only under the condition that the employee arranges the amount proposed by the Company.
True, when choosing a more economical option, it is also necessary to take into account the fact that the "compensation" by agreement of the parties to the company is safer than at the expense of net profit. The tax authorities often insist that they cannot be attributed to the costs that reduce the tax base for income tax (in contrast to compensation in the reduction of the state, which is directly indicated among the cost of labor 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 the pay. In fact, this is a controversial question. For example, the Ministry of Finance of Russia believes that compensation can be included in the costs if it is provided for by the employment contract (letter No. 03-03-06 / 1/546). However, the courts are still supported by the tax authorities (the resolutions of the federal arbitration courts of the Moscow District dated 16.04.07 in case No. Ka-A40 / 2100-07, the Far Eastern District dated 12.12.07 No. F03-A24 / 07-2 / 5014).
If there is a trade union in the company, it also needs to be prevented about the reduction of the state
This is a mandatory stage, due to non-compliance with which the court may recognize the reduction in illegal (paragraph 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). An employer must write in writing to the union into the love of the upcoming abbreviations no later than two months before the start of the appropriate measures, and if the abbreviations will be massive - in three months (part 1 of Art. 82 of the Labor Code of the Russian Federation ). According to the definition of the Constitutional Court of the Russian Federation of January 15, 2000 No. 201-O-P, the "beginning of the events" is considered to be the beginning of termination of employment contracts with employees. That is, notify the trade union should be simultaneously with the warning of workers, and if mass dismissal is coming, then a month before the notification of employees.
The total criteria for the mass of layoffs are determined in industry and territorial agreements between employers and trade union organizations (the procedure for their conclusion and action is established in Articles 47 and 48 of the Labor Code). If the company has a trade union, it should also be prevented about the reduction of the state.
What option to choose
Why you can not give icons
Is it possible to give icons as a gift: Signs, the opinion of the Church
A year ago left her husband, and now I do not know what to do