Exit to early with a reduction. Early dismissal when reducing staff: employer actions

Labor legislation allows the dismissal of a reduced employee for a previously two-month period established to prevent such dismissal. With this early dismissal, the employee needs to make the same payments that would be relying to him when dismissing to reduce the state on time, as well as to pay additional compensation.

Early dismissal

Such an opportunity includes part 3 Art. 180 TK RF.

The conditions for early dismissal are:

• the written consent of the employee on the proposal of the employer on the dismissal of the deadline specified in the notification issued by the employee about the dismissal to reduce;
• payment of an additional compensation employee (in fact, payment in the amount of average earnings remaining up to the date of dismissal is usually about two months).

Since the basis of the dismissal specified in the order and the employment record will be 2 h. 1 of Art. 81 TK RF, employee relies all guarantees and benefits established by law for abbreviated employees.

Registration of early dismissal

From h. 3 Art. 180 of the Labor Code of the Russian Federation it follows that the proposal on such early dismissal should come from the employer. However, the prohibition of the reverse option is not established, which means that an employee can act with a similar initiative. The employer has the right to agree or refuse.

Employers dismissed early to reduce further compensation in the amount of their average earnings, calculated in proportion to time until the end of the prevention of dismissal.

A early declining worker can qualify for five of its average earnings ("Northerner" - up to eight).

Pay all the amount owed (except for the saved earnings for the 2nd and 3rd months of emerdiation) is needed on the day of dismissal - Art. 140 TK RF.

It turns out, on the day of dismissal during the early reduction, he needed to pay:

• salary during work preceding dismissal (including compensation and stimulating payments);
• compensation for the previously unused vacation (Article 127 of the Labor Code of the Russian Federation);
• output allowance in the amount of average monthly earnings (Article 178 of the Labor Code of the Russian Federation) or in an increased amount, if it is established in the organization;
• additional compensation.

How to correctly calculate additional compensation for early reduction?

The average monthly earnings of the employee used, including, and to calculate additional compensation, include all payments provided for in the organization of the remuneration system (Article 139 of the Labor Code of the Russian Federation and the provision on the specifics of the procedure for calculating average wages, approved. Government Decree of 24.12 .2007 N 922 (hereinafter referred to as position No. 922)).

Consider an example of calculating such compensation.

The employee was notified on 08/31/2017 about the upcoming dismissal to reduce with the expiration of a 2-month period 10/31/2017. With his written consent, the employment contract was early terminal 15.09.2017. The salary of this employee is 50 thousand rubles. per month. How to calculate the size of the Supplementation for early dismissal, if the estimated period is completely worked out?

Supplementation for early dismissal is paid by a reduced employee for the period from 09/16/2017 to 31.10.2017. In this period, on the 2017 production calendar, 32 working days.

P. 9 of the provisions N 922 prescribes the use of average daily earnings in the data provided by the Labor Code of the Labor Code in determining the average earnings. Middle earnings are multiplying the average daily earnings on the number of days in the period payable.

In our situation, the average daily earnings is divided by the amount of salaries, actually accrued for spent days in the estimated period (in this number - premiums and remuneration in accordance with paragraph 15 of the position N 922), by the number of days actually worked in this period.

Settlement period - 248 business days.

The average daily earnings - 2419.35 rubles. ((50 000 rub. X 12 months) / 248 slave days).

The amount of the Supplementation for early dismissal is 77419.35 rubles. (2419.35 rubles. X 32 slave).

The law does not prohibit the early dismissal of the employee while reducing the state at the initiative of the employee. This gives an employee the opportunity as quickly as possible to start searching for new work..

The procedure for dismissal to reduce the state is quite complex and "paper". First, the employer must publish an order to reduce the state. This is not an order of dismissal on some reason, this is an order about the start of measures to reduce.

The order indicates which positions fall under reduction.

Then each employee who falls under the reduction is needed in writing to notify. The employee signs the notice, thereby showing that he got acquainted with him. Notify the employee needs at least 2 months. This suggests that the employee will work for about 2 months, and then fired. But there is early dismissal when reducing the state, which means that the employee is dismissed before the expiration of 2 months. But how to do it right to get all the allowed payments?

When reducing the staff, the employer must make the following payments to each employee:

• salary for all actually spent working shifts or days in that month in which the employee will write a statement;
• compensation for non-glured vacation;
• output allowance in the amount of one average earnings of this employee for the month;
• manual for the time of employment of a reduced employee. By law, the employer must pay only 2 months of employment in the amount of the average earnings of this employee for each month;
• if the worker rose into the employment center for 2 weeks after the reduction, but could not work out for 2 months, the employer must pay another average earnings.
• if there is early dismissal to reduce the initiative of the employee, the employer must pay another allowance that is calculated in proportion to the working days remaining before reducing.

In order not to lose all the above payments due to the unscrupulousness of the employer, it is necessary to quit it right.

Once the employee is dismissed on his own initiative, he must write a statement on his own request. To "correctly" quit early when reducing the state, you need to write a statement correctly.

The statement must be specified:

• the fact that the employee is already familiar with the beginning of the state reduction procedure. Be sure to specify the date when the employer brought an order to the employee and notice;
• the fact that the employee was offered the vacancies available at the enterprise, which correspond to his qualifications and work experience;
• the fact that dismissal is a personal employee initiative, and he wants to quit early, before the expiration of the last two months;
• the fact that the worker even in this case claims all the payments that are put on him by law;

Be sure to specify the date with which the employee is dismissed.

The employer must sign this statement. Thus, he confirms his consent to the dismissal of the employee under such conditions.

After signing the application, the employer must issue an order in which it will be indicated that it is necessary to "dismiss the employee (FULL NAME) ahead of schedule on its initiative ... .. (HF. Mm. Gg)."

The order is registered in the journal of orders. It must also be signed by the employee. This suggests that the worker familiarized himself with the order.

The employer must make a full calculation with an employee on his dismissal day. If the employer evade the payment of all compensation benefits, the employee has the right to apply for the protection of his rights to the employment inspection, in the prosecutor's office or to court.

If the decision is made in favor of the employee, the employer will have to pay the employee all the payments on the law, as well as compensate for legal costs and compensate for moral and material harm.

To reinsurance yourself, you can make a written agreement on early dismissal, where exactly the size of all compensation payments and the procedure for their provision.

Such an agreement must be made in 2 copies and sign up to both parties.

If the dismissal of the employee does not occur on his initiative, then it is always unpleasant for the employee, offensively. Most people try to avoid such a situation. However, there are cases when dismissal is inevitable. This happens while reducing the state of the enterprise. If you have received a notice of dismissal to reduce states, then early dismissal may become a good alternative.

Rather at your own accord?

According to the Labor Code, when dismissing an employee in connection with the reduction in the state of the enterprise, an employee is not less than 2 months before the designated date of dismissal awarded a notice of the upcoming reduction of the post and dismissal of the employee. But quite often the situation occurs when the employee himself asks for an earlier termination of the employment contract. This may be caused by a number of reasons. One of them - a man found a new job. Fearing that the vacancy will be occupied by another applicant, he seeks to embark on the performance of responsibilities.

What basis in this option should the employee be vacated? After all, he expressed his own desire, at the same time, this desire is caused by the reduction of state. The basis of dismissal depends on whether the existence of a day off and an average salary for the time of employment will be made, additional compensation, calculated in proportion to the time not spent by the employee until the end of the reduction prevention period.

The Constitution of the Russian Federation and the TC guarantee all citizens the right to work. And where exactly in which organization, the company, the company employee will exercise its right - depends on it. Therefore, the employer can not impede the desire of the employee to quit the onset of the date of dismissal to reduce. An employee may apply the appropriate statement at any time.

In this case, the employee must clearly understand that when dismissal at his own request, he does not lose the right to the guarantees, compensation, which he would be provided with the dismissal to reduce the state. At the same time, this early dismissal is due to the "own desire" of an employee, but is a forced, "hidden" dismissal to reduce the state.

Early termination of the state contract

The Labor Code of the Russian Federation makes it possible to dismiss the reduced worker to the period that determines the notice of early dismissal. According to Part 5 of Art. 180 The employer may terminate the employment contract with the employee before the expiration of his written consent.

Thus, according to this article, the right of early termination of the contract is provided to the employer, not an employee, although its employer can only be implemented with the consent of the employee. That is, initially the employer decides on the feasibility of working out the entire period marked in the notification.

But this rate cannot prohibit the employee to initiate the process of termination of the employment contract ahead of schedule. Moreover, the Labor Code does not force the employer to certainly satisfy this request of the employee. Therefore, for the early termination of the state reduction contract in this should be interested in both sides. And the employer first of all, since it depends more depends to it, this reduction will occur or not, and the employee remains the right to agree or abandon this proposal.

Application for early termination of the labor contract for reducing state

An employee can also make an initiative about the early termination of the contract in compliance with all possible legal guarantees, which are provided for in Article 180 of the TC. Whether to agree on this proposal is the prerogative of the employer. In this case, for the adoption of the right decision to reduce the employee, a large role is given to a statement on the early termination of the contract.

For dismissal, the employee is not on the basis of his own desire, but to reduce the state, the application must be correctly written. His text should exclude a dual interpretation. A request must be set out in detail and clearly.

It is necessary to indicate that the employee is familiar with the start of the procedure for its dismissal due to the upcoming reduction in state, indicating the date defined for this. It was necessary to inform if the vacancies were proposed, and if so, what. We must definitely indicate that he wants to quit until the appointed date of dismissal due to the reduction of the state, and that claims for due compensation payments. Without the consent of the employer in this case, dismissal is impossible.

Payments for dismissal to reduce before the expiration date

It is clear that the employer is more costly more profitable to dismiss workers during the reduction period at their own request. In this case, it should not perform compensation payments. Some dishonest employers even use threats, psychological pressure methods to force workers to quit independently.

If an employee is dismissed early, then it provides for the following payments when dismissal to reduce before the expiration of the reduction period, which pays the employer:

• salary for the time he actually worked in the month of dismissal;
• compensation for all vacation that the employee did not use;
• the output allowance constituting the average monthly salary (only if the early dismissal on the initiative of the employer);
• additional compensation, equal to the average earnings in the time that remains until the appointed date of dismissal to reduce the state (in case it is written in the collective agreement);
• for the period of employment - the average monthly earnings, but this period should not exceed two (in some cases, by decision of the employment center - three) months from the date of dismissal.

Appeal to the Court

There are often cases when an employee, leaving the pressure from the employer, in the period of reducing the state writes a statement with a request to dismiss it "at his own will." Then he can go to court with a statement about changing the wording of the promiscuous causes of dismissal and recovery by the payments to him, arguing that the administration forced him to write a statement. In this case, it is the employee who must prove that coercion from the employer took place.

Considering the claim, the court studies:

If in court, the employee proves that this statement was written to them under the pressure of the employer and does not correspond to his desires, the termination of the contract is recognized as illegal. In such a case, the employer is obliged to change the formulation of the foundation of the dismissal, as well as to produce all the required payments, including compensation for moral damage and expenses caused by participation in court sessions. Perhaps the court is making a decision on the restoration of an employee in the position and payment of forced absenteeism.

State ...

Question lawyer:

Hello! I received a warning from my employer about the upcoming dismissal to reduce the staff of employees, the date of reducing the post after 3 months after receiving the notice. I would like to abandon the reduction (paragraph 2 of Part 1 of Article 81 of the Labor Code of the Russian Federation) before the specified period. What should be my actions to make this procedure correctly and get all the payments for me!

A response of a lawyer to the question: early dismissal
Make an employer about early dismissal. According to Part 3 of Art. 180 of the Labor Code of the Russian Federation, the employer with the written consent of the employee has the right to terminate the employment contract with him before the expiration of the period specified in the part of this article, paying it to additional compensation in the amount of the average earnings of the employee, calculated in proportion to the time remaining before the expiration of the dismissal warning period.
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A response of a lawyer to the question: early dismissal
If you get fired ahead of the notice period, the employer has the right not to dismiss you on the grounds of paragraph 2 of paragraph 1 of Article 81 of the Labor Code of the Russian Federation and to pay an existence on the reduction, but simply dismiss 80 TK of the Russian Federation. This procedure in the TK RF is not provided. Again with the employer. Perhaps he will agree to the dismissal under Article 78 of the Labor Code of the Russian Federation by agreement of the parties with the payment of the output benefit in the amount of established Article 178 of the Labor Code of the Russian Federation.
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Staff reduction - long procedure. The Labor Code has envisaged to speed up this period. Early reduction of the employee before the expiration of the warning is possible only in the presence of an employee's consent.

Where to begin?

Start abbreviations are needed from the decoration of the decision. The supervisor needs to publish an order. In this document it is necessary to reflect:

• the whole list of posts that should be excluded from the state;
• exclusion dates;
• persons who are responsible for carrying out the necessary actions (notice of the employment center, workers, etc.).

The same document can create a commission, which will include a reduction in the authority.

Notification of employees and supply to them available vacancies

All employees falling under the reduction must be notified in advance. To warn workers need to be under painting and personally at least two months before dismissal (part 2 of Art. 180 of the Labor Code of the Russian Federation).

For seasonal workers, the warning period is much shorter. It is seven calendar days. And workers with whom the employment contract concluded for less than two months must notify the minimum for three calendar days.

Such notice is compiled in free form. An employee will need to sign this document. If he refuses signing, the text of the document should be read by him out loud with witnesses. Further, the fact of notification and refusal to sign must be recorded in the act.

Before agreeing with the worker about reducing the warning period, he needs to offer free vacancies. Since it is entitled to dismiss the employer to reduce only after the employee refuses to work in the company. The translation proposal can be done both in the text of notifications and a separate document.

If employees do not want to translate into other vacancies and agree to quit earlier, you need to request consent to reduce the term. Such consent is drawn up in an arbitrary form with a mandatory signature of the employee.

Notification of government agencies

On the reduction must be notified and government agencies:

• employment center (paragraph 2 of Art. 25 of the Law of the Russian Federation of 19.04.1991 N 1032-1);
• elective body of the primary trade union organization (Art. 82 of the Labor Code of the Russian Federation).

Early reduction. Payments

The employer in reducing the warning is obliged to pay additional monetary compensation. Such compensation is the average earnings of the employee and is calculated in proportion to the period that remains until the expiration of the notice of the upcoming reduction.

Early dismissal when cutting. Base

The basis of dismissal with an agreement with the worker about reducing the term will be all the same - dismissal to reduce. In some cases, employees of the personnel department offer registration of the termination of the employment contract by agreement of the parties, referring to the agreed agreement reached. But then the employee loses the right to the payment guaranteed by the Law, which remained to reduce it. Therefore, in the future, dismissal under the agreement, instead of dismissal to reduce, may be challenged in court and recognized illegal.

Termination of labor relations is completed by the issuance of the order