Article 181 of the Labor Code describes guarantees for top managers upon termination of an employment contract with them due to a change in the owner of the organization’s property.
It specifies the types of this group of employees and sets minimum limits on the amount of compensation paid to them. Labor Code of the Russian Federation
dated December 30, 2001 N 197-FZ
Full text of the article, guides, additional information - in ConsultantPlus
Termination of the employment agreement
An agreement with a company or firm to provide work to a citizen of the Russian Federation provides for guarantees upon termination of the employment contract. An employee who is laid off for various reasons is paid compensation in the amount of his monthly salary or average salary (piecework wages). Contractual regulation of labor relations will help you avoid fraud on the part of the employer, and you will definitely get your money.
Over the next two months from the moment of leaving work, the employee remains with the average salary, excluding the lump sum compensation paid.
The presented procedure is carried out upon termination of the contract due to a decrease in the number of employees, termination of the company’s activities, or other reasons at the request of the employer.
Reimbursement in the amount of salary for a two-week period of time is provided for reasons for termination of employment:
- Conscription of those liable for military service.
- Conscription for general military training of citizens in the reserve.
- Reinstatement, return of the replaced employee.
- Declaring a worker unfit for work based on a medical certificate.
- Refusal to continue working due to violation of the terms of the employment agreement.
- The refusal is transferred to a new location for another position.
The law does not regulate the amount of compensation, labor and collective agreements. Payments may be reduced or increased in cases of dismissal. In any case, guarantees and compensation upon termination of an employment contract are preserved and guaranteed by the basic norms and rules of the Labor Code of the Russian Federation.
40. GUARANTEES AND COMPENSATIONS FOR EMPLOYEES RELATED TO TERMINATION OF AN EMPLOYMENT CONTRACTUpon termination of an employment contract due to the liquidation of the organization or reduction in the number or staff of the organization's employees, the dismissed employee is paid severance pay in the amount of average monthly earnings
, and also retains his average monthly salary for the period of employment, but not more than 2 months from the date of dismissal (including severance pay).
Severance pay in the amount of two weeks' average earnings
paid to employees upon termination of an employment contract in connection with:
1)
the employee’s conscription into military service or his assignment to an alternative civilian service;
2)
reinstatement of the employee who previously performed this work;
3)
the employee’s refusal to transfer to another job, necessary for him in accordance with the medical report;
4)
the employee’s refusal to be transferred to work in another location together with the employer;
5)
recognition of the employee as completely incapable of work in accordance with a medical report;
6)
the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties.
An employment or collective agreement may provide for other cases of payment of severance pay, as well as establish increased amounts of severance pay.
If the number or staff of employees is reduced, the priority right to remain at work
provided to workers with higher labor productivity and qualifications.
With equal labor productivity and qualifications, preference in remaining at work is given to: 1)
family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood );
2)
persons in whose family there are no other workers with independent earnings;
3)
employees who received a work injury or occupational disease in this organization;
4)
disabled people of the Great Patriotic War and disabled people fighting to defend the Fatherland;
5)
employees who improve their qualifications in the direction of the employer without interruption from work.
The collective agreement may provide for other categories of workers who enjoy a preferential right to remain at work with equal labor productivity and qualifications.
When carrying out measures to reduce the number or staff of an organization's employees, the employer is obliged to offer the employee another available job (vacant position).
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 (2 months), paying him additional compensation in the amount of the employee’s average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.
Table of contents
Initiative from both sides
When reducing the company's core workforce, preference is given to qualified and experienced employees with greater productivity.
By law, jobs are preserved for:
- Family, with one or more children.
- Single mothers or fathers with a minor child or children.
- Supporting dependent close relatives.
- Citizens who are the only breadwinners in their family.
- Those who have received serious injury, damage, or occupational illness at work.
- Disabled people of the Second World War, battles in hot spots in different regions of the Russian Federation.
- Those who improve their qualifications in their profession at the initiative of the employer without interrupting their main work activity.
Article 178. Severance pay
Upon termination of an employment contract due to the liquidation of an organization (clause 1 of part one of Article 81 of this Code) or a reduction in the number or staff of the organization’s employees (clause 2 of part one of Article 81 of this Code), the dismissed employee is paid severance pay in the amount of the average monthly salary, as well as for he retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).
(as amended by Federal Law No. 90-FZ of June 30, 2006)
In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it.
Severance pay in the amount of two weeks' average earnings is paid to the employee upon termination of the employment contract due to:
the employee’s refusal to transfer to another job, required for him in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work (clause 8 of part one of Article 77 of this Code);
calling up an employee for military service or sending him to an alternative civil service replacing it (clause 1 of part one of Article 83 of this Code);
reinstatement to work of an employee who previously performed this work (clause 2 of part one of Article 83 of this Code);
the employee’s refusal to be transferred to work in another area together with the employer (clause 9 of part one of Article 77 of this Code);
recognition of the employee as completely incapable of working in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation (clause 5 of part one of Article 83 of this Code);
refusal of the employee to continue working in connection with a change in the terms of the employment contract determined by the parties (clause 7 of part one of Article 77 of this Code).
(Part three as amended by Federal Law No. 90-FZ of June 30, 2006)
An employment contract or collective agreement may provide for other cases of payment of severance pay, as well as establish increased amounts of severance pay.
Additional guarantees and pregnancy
Every employee dismissed for any reason has guarantees and compensation upon termination of the employment contract. Includes payments for the entire period of the paid vacation period that were retained and were not used in the course of work at the enterprise.
Before actually leaving the company, the employee has the legal right to demand all days of vacation, in the event of termination of the employment agreement at the request of the employee. This time is provided in accordance with the end date of the employment relationship specified in the contract, taking into account and including the vacation period.
The law provides for the receipt of compensation related to an injury received at the enterprise during working hours during the period specified in the agreement upon presentation of a medical certificate. The remaining cases do not provide for payments for medical insurance situations.
Some types of citizens of the Russian Federation are provided with additional guarantees for maintaining a job or additional compensation if it is impossible to remain in a position.
What guarantees and compensations is a fired person entitled to?
These include pregnant women, women with children under 3 years of age, single mothers raising a child under 14 years of age (a disabled child under 18 years of age), and other persons raising such children without a mother. In some cases, the employer has the right to dismiss only with the consent of certain authorities. So, for example, dismissing a minor (under the age of 18) is possible only with the consent of the state labor inspectorate and the commission for minors and the protection of their rights (this does not apply to the case of liquidation of an organization). Severance pay, according to Art. 178 of the Labor Code of the Russian Federation, includes the amount of money paid to the employee on the day of dismissal in the amount of average monthly earnings. He also retains his average monthly salary for the period of employment, but not more than 2 months from the date of dismissal (including severance pay).
Severance pay is paid in cases of termination of an employment contract due to:
- with the liquidation of the organization
- with a reduction in the number or staff of the organization's employees
- having 2 or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is their permanent and main source of livelihood);
- persons in whose family there are no other independent workers;
- employees who received a work injury or occupational disease while working for this employer;
- disabled people of the Great Patriotic War and disabled people fighting in defense of the Fatherland;
- employees who improve their qualifications in the direction of the employer without interruption from work.
Important note! In accordance with Part 2 of Art.
178 of the Labor Code of the Russian Federation, if within two weeks from the date of dismissal due to staff reduction you contacted the employment service, and it, in turn, was unable to employ you within two months, then by its decision the employer is obliged to pay the average monthly salary and third month. (See in which cases severance pay is paid in the amount of two weeks’ average earnings.) Preferential right to remain at work when the number or staff of employees is reduced (Article 179 of the Labor Code of the Russian Federation)
Employees with higher labor productivity and qualifications have a preferential right to remain at work. But under equal conditions, preference is given to:
The collective agreement can provide for other categories of workers who will enjoy a preferential right to remain at work with equal labor productivity and qualifications.
Guarantees and compensation to employees during the liquidation of an organization, reduction in the number or staff of the organization's employees (Article 180 of the Labor Code of the Russian Federation) During liquidation and reduction, the employer must:
1) offer the employee another available position;
2) notify employees about changes at least 2 months before dismissal;
3) pay compensation to the dismissed person in the amount of average earnings if he is fired before the due date.
Guarantees to the head of the organization, his deputies and the chief accountant upon termination of the employment contract due to a change in the owner of the organization’s property (Article 181 of the Labor Code of the Russian Federation)
The right to terminate the employment contract with the head of the organization, his deputies and the chief accountant upon a change of owner is established in Art. 75 Labor Code of the Russian Federation. The new owner can do this no later than 3 months from the date he acquired ownership rights. Managers are entitled to special guarantees in the event of dismissal as a result of a change in the owner of the company - compensation in the amount of not less than 3 average monthly earnings.
Prohibitions and problem solving
There are a number of valid factors for which all guarantees are retained for employees when terminating an employment contract at their own request:
- Retirement time achievements.
- Admission to study at a university or college.
- Moving to a new place of residence.
- Transfer to another position.
- Leaving the country.
The law prohibits dismissing employees:
- Those with temporary disability.
- From the age of eighteen.
- Members of public trade unions.
- Representatives of working groups, cells.
- Pregnant women at any stage.
- Mothers with young children.
Whatever guarantees there are for the termination of an employment contract, for what reason, initiative and on whose side it was interrupted, for its correct execution it is advisable to seek advice from experienced lawyers who will provide assistance if necessary.
You can be sure that all warranties are met and legal rights are ensured. Any question of interest regarding the legality and legality of the relationship between an employer and an employee can be resolved with the lawyers of the website 33urista.ru using an online consultation. Experienced consultants, paid and free, will be able to help in any situation.
Current problems of law enforcement when terminating an employment contract at the initiative of the employer
The article addresses the following issues:
- Termination of an employment contract upon liquidation of an organization
- Termination of an employment contract in case of reduction in the number of employees or staff of the organization
- Termination of an employment contract in the event of repeated failure by the employee to fulfill his labor duties
- Termination of an employment contract in the event of a single gross violation of labor duties by an employee
- Termination of an employment contract due to a one-time gross violation by the head of the organization or his deputies of their labor duties
- Termination of an employment contract due to the employee submitting false documents or knowingly false information to the employer when concluding an employment contract
First of all, you should pay attention to clause 1 of Article 81, in accordance with this clause, the employer terminates the contract with the employee in the event of liquidation of the organization or termination of the activities of an individual entrepreneur.
This formulation raises one main question: what should be considered the moment of liquidation? The beginning of the liquidation procedure of a legal entity, i.e. making an entry in the Unified State Register of Legal Entities on the appointment of a liquidation commission, a liquidator, or from the moment of termination of the organization’s activities and making a corresponding entry in the Unified State Register of Legal Entities. This issue is of fundamental importance, since the employer is obliged to notify the employee against signature of the upcoming dismissal in connection with the liquidation of the organization (paragraph 2 of Article 180 of the Labor Code of the Russian Federation). If the moment of liquidation must be considered the appointment of a liquidation commission, then there is a possibility that the liquidation process may be delayed, and employees will be fired before the liquidation of the legal entity, which will give the opportunity to dismissed employees to demand reinstatement in court, since in fact the legal entity will continue to operate for some time. Likewise, it is impossible to say exactly when the process of liquidation of a legal entity will be completed, since each case is individual.
In this regard, to eliminate this problem, it is necessary to supplement paragraph 1 of Article 81 as follows: liquidation of an organization or termination of activities by an individual entrepreneur. The employer notifies employees of the upcoming dismissal 2 months before making an entry in the Unified State Register of Legal Entities about the appointment of a liquidation commission. Accordingly, the employment relationship with the employee will be terminated from the moment the liquidation commission is appointed, since, in fact, from the moment the liquidation procedure begins, the organization does not carry out activities, and the employees, accordingly, do not perform their labor functions.
If the appointment of a liquidation commission is considered the moment of termination of the employment relationship, then the employee will have an additional guarantee - after dismissal, the employer pays the employee money for the days actually worked and severance pay; if the employer does not pay all the money at once, then in accordance with Article 64 of the Civil Code The Russian Federation will pay the missing part to the employee in the second order of priority.
In my opinion, this addition will resolve the issue with the moment of dismissal, but will not unambiguously resolve the issue of the workers’ right to reinstatement in connection with the continuation of the organization’s activities; it seems that such requirements will be legal if the liquidation process is interrupted.
Clause 2 of Article 180 needs to be specified. First of all, it is necessary to distinguish between the definitions of a reduction in “numbers” and a reduction in “staff”.
The points of view of experts on this issue are divided. The first is this: when the number of employees is reduced, there is a reduction by a certain number of staff positions in one of the positions (profession, specialty), and when the staff is reduced, the position itself is eliminated. The second states: when the number of employees is reduced, the total number of employees decreases, and when staff is reduced, the number of staff units per position is reduced or the position itself is eliminated [1].
This question is of fundamental importance, but the legislator does not answer it, which gives rise to problems in judicial practice. Despite the fact that the legislator has not distinguished between the concepts of staff reduction and staff reduction, the courts give these concepts their own interpretations. The most accurate definition, in my opinion, was given by the Vinogradovsky District Court of the Arkhangelsk Region in its decision of July 25, 2011 in case No. 2-219/2011:
“A workforce reduction consists of reducing the number of employees in certain positions (specialties) in an organization without adjusting the staffing table. Reduction of staff represents the exclusion of individual staff units from the staffing table.”
Based on this decision, staff reduction involves the dismissal of employees from their positions, while staff reduction only involves the exclusion of specific positions from the staffing table. Thus, in my opinion, a reasonable solution would be to separate the reduction in the number of employees into a separate paragraph of Article 81 in the wording given by the Vinogradovsky District Court. Isolating concepts is necessary, first of all, in order to distinguish the concepts of reducing “numbers” from reducing the “staff” of workers, since, based on the above, there really are differences. If we talk about the guarantees provided to employees during a reduction in numbers, it is necessary to mention that the reduction procedure itself is initiated in order to optimize the organization’s expenses for the current period, and therefore providing an employee with another position is rarely possible.
Another problem is the content of clause 5 of Article 81. In accordance with this clause, an employee can be dismissed in the event of “repeated failure by the employee to fulfill his job duties without good reason, if he has a disciplinary sanction.” This formulation raises one main question - what should be understood by the term valid reasons? There is no answer to this question in labor legislation, which leads to differences in understanding on the part of the employee and the employer, as well as the judicial authorities. It is necessary, first of all, to determine the criteria according to which it can be considered that the failure to fulfill labor duties was committed for good reasons. Judicial practice does not directly raise this issue and each time leaves the assessment of the validity of the reasons to the employer, who, based on the employee’s written explanations, is obliged to independently determine whether the reasons for the employee’s failure to fulfill his duties were valid or not. In practice, articles in which the reasons for dismissal are related to respect, the court very carefully examines all the evidence provided by the parties in order to objectively assess the circumstances.
It is possible to call paragraphs quite debatable. “a” clause 6, part 1, art. 81 - absence from the workplace without good reason for more than four hours in a row during a working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during a working day (shift) .
In practice, as in many other areas of law, assessing the validity of reasons is a complex, evaluative category, which is interpreted differently by each subject. The same is true in labor law - the employer may not see a valid reason for the employee’s absence from the workplace. However, the law cannot contain either a clear definition or a list of circumstances, the presence of which should be considered a basis for recognizing the reasons for absence from work as valid. Due to evaluative concepts, it can be difficult for an employer to assess the reasons for an employee’s absence from the workplace.
Another serious problem is the difficulty of applying paragraph 10 of Article 81, which reads as follows: “a single gross violation by the head of the organization (branch, representative office), or his deputies of their labor duties;.” Based on this wording, it is not clear for which violations the employment contract can be terminated.
The Labor Code of the Russian Federation does not define the concept of “gross violation of labor duties.” In practice, this is an obvious and culpable (intentional or careless) violation by an employee of the duties provided for by regulations, labor and collective agreements. In each case, the severity of the violation is determined taking into account the specific circumstances [2]. The following should be regarded as a gross violation of labor duties by the head of the organization (branch, representative office) and his deputies, in particular:
- failure to perform the functions assigned to these persons by the employment contract, which could result in harm to the health of employees or property damage to the company;
- carrying out illegal commercial activities by such persons using the organization’s property. If, when carrying out such activities, a manager uses his official position and violates his official duties, this may become grounds for dismissal [3].
The employer must prove in court the fact of violation of labor duties by the manager and the degree of his rudeness [4].
Let's consider a practical situation.
The employer has the right to dismiss the deputy head of the organization on the grounds provided for in clause 10, part 1, art. 81 of the Labor Code of the Russian Federation, if it proves that the violation committed by the employee was of a gross nature.
According to paragraph 49 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, a gross violation of labor duties is the failure by employees to perform the functions assigned to them by the employment contract, which could result in harm to the health of employees or property damage to the organization. For example, the deputy head of an organization for administrative matters entered into an agreement for the supply of equipment that does not have a certificate of conformity, without holding a tender established by local regulations. A company employee was injured while working on this equipment. Considering that the deputy manager was familiar with local regulations requiring the holding of a tender before concluding an agreement for the supply of equipment, we can speak of a gross violation of the employment contract and local regulations of the employer, which resulted in harm to the health of the employee, for which dismissal is possible [5] .
Thus, it is necessary to legislate the signs of a “gross violation” in order to narrow the scope of assessment of specific circumstances. It seems that stipulating gross misconduct in the employment contract for managers would be the right decision.
We should talk separately about Clause 11 of Article 81. Submission by an employee to the employer of forged documents or knowingly false information when concluding an employment contract (Article 81 of the Labor Code). Such an interpretation of the reason for terminating an employment contract may become a convenient case for dismissing an employee with whom the employer would not like to continue the employment relationship. The employer is obliged to prove the deliberate falsity of the documents or information submitted by the employee when applying for a job. In order to avoid possible conflicts, the paragraph should be formulated as follows:
Submission by an employee of false documents or deliberately false information to the employer when concluding an employment contract, if such directly affects the possibility of continuing to work for the employer.
This formulation will allow you to cut out unnecessary speculation by the employer and accurately identify cases when the unreliability of the information provided can be considered insignificant.
[1] Difficult issues when reducing the number or staff of employees. Electronic resource. Access mode: https://info-personal.ru/uvolnenye-rabotnokov/slozhnye-voprosy-pri-sokrashhenii-chislennosti-ili-shtata-rabotnikov/»> URL: https://info-personal.ru/uvolnenye-rabotnokov /slozhnye-voprosy-pri-sokrashhenii-chislennosti-ili-shtata-rabotnikov/ (date accessed 05/02/2018).
[2] Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 (as amended on November 24, 2015) “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” // Bulletin of the Supreme Court of the Russian Federation, N 6, 2004.
[3] Determination of the Moscow Regional Court dated May 20, 2010 in case No. 33-9730 on the claim of the prosecutor of the city of Ivanteevka in the interests of F. against the State Unitary Enterprise “Ivanteevsky Forest Breeding Experimental Nursery” // https://www.lawmix.ru/ obsh/15467
[4] Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 (as amended on November 24, 2015) “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” // Bulletin of the Supreme Court of the Russian Federation, N 6, 2004.
[5] Tachakhova R.N. Dismissal of the head of the organization and his deputies for a single gross violation of labor duties. Electronic resource. Access mode: https://kkka13.ru/soveti__advokata/trud_spor/Uvolnenie_rukovoditelja_organizacii.aspx
What are the compensations for forced dismissal?
The emergence and termination of labor duties between the company and the employee are established by law. The Labor Code also establishes compensation due in the event of forced termination of employment relationships.
For what kind of dismissal can you receive compensation?
Liquidation of an enterprise or reduction of staff is inevitably accompanied by termination of employment agreements between the employer and employees. It is necessary that the dismissal order contains precisely these grounds, which must be recorded in the work book. In this case, the employer from its budget is obliged to pay the dismissed employee severance pay, the amount of which is one average monthly salary. In addition, the dismissed person retains the same amount of payment for the period of employment, not exceeding two months from the date of dismissal, including severance pay. In exceptional cases, it is possible to retain the average earnings of a dismissed employee for the third month. In the Far North, these payments can last up to six months. If the dismissed person was engaged in seasonal work, then he is due compensation equal to two weeks' earnings. Labor Code of the Russian Federation Art. 81, art. 296, art. 318.
Upon termination of an employment contract with employees holding management positions (director of an organization, deputy, chief accountant), due to a change of owner, compensation is paid, the minimum of which is three times the average monthly salary of the employee (Article 181).
If an employee decides to stop working, not wanting to be transferred to another job due to the presence of a corresponding medical certificate, then he should not write a letter of resignation on his own initiative, since he is entitled to a compensation payment, the amount of which is two weeks’ average earnings (Article 77, paragraph 8 ).
If an employee is called up for military or alternative civilian service, then a statement “on his own” is not written; in accordance with the Labor Code, the future defender of the Motherland is entitled to severance pay in the amount of two weeks’ salary (Article 83, paragraph 1).
Also, a similar benefit upon termination of an employment agreement is entitled to: • an employee in connection with the reinstatement of an employee who previously performed this work to his workplace (Article 83); • an employee who refused to work in connection with the transfer of the enterprise to another area (Article 77, paragraph 9); • an employee who refused to continue fulfilling his assigned job duties due to changes in the terms of the employment agreement (Article 77, paragraph 7); • an employee recognized by a medical certificate as incapable of further work.
Compensation under contract and agreement
The grounds for payment of compensation upon dismissal by an employer to an employee may be specified in the employment contract. Also, the parties to an employment contract can agree on compensation upon dismissal; this usually happens when an employer for some reason wants to fire an employee, but there are no legal grounds for this.
On the day of termination of the relationship between the employer and the employee, the work book is returned to the dismissed person and a full payment is made (Article 84.1, Article 140).
The fired person will be paid twice
The Supreme Court recalled these points when it considered a complaint about a legal dispute by a certain citizen. The woman was suing her former employer. She was fired early and was not immediately given her work book. The plaintiff felt that she had to pay for her early dismissal and was indignant that she had not been given a work book for a long time. The Supreme Court responded to this by saying that the lady rightly demands what is due to her by law.
Local courts did not support her demands. So, the woman worked as a director, as stated in the court decision, in a state educational institution. Simply put, she was a school director. The Department of Education and Science fired her. In the entry in the work book they wrote: in connection with the termination of the employment contract under paragraph 2 of Article 278 of the Labor Code. This paragraph and article speaks about the termination of an employment contract with the head of an organization “in connection with the adoption by the authorized body or owner of a decision to terminate the employment contract.”
Now watch the dates. The department's dismissal order was issued on July 19, and the work book was handed over to the citizen on August 11. She didn’t like it, and the former director complained to the labor inspectorate about the violation of her rights. There was an audit that confirmed the validity of the dismissed woman’s claims. Therefore, on September 29, the date of the previous order was changed and it was written down that the woman was fired on September 11. The woman went to court and demanded that the department make a record of dismissal under the new order. The fact is that there was a new order, but the entry in the labor record remained the same. She also asked to recover her earnings from the department from July 19 to August 11, and to pay two more monetary compensations - for dismissal and for moral damage.
If there is a delay in issuing a work book, the employer will reimburse the earnings not received during the delay.
That's what the Supreme Court decided. According to the Labor Code, the employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his right to work. Such an obligation, in particular, arises if earnings are not received as a result of a delay in issuing a work book, or the entry of an incorrect or illegal entry into it. In addition to the Labor Code, there is another document. These are the “Rules for maintaining and storing work books.” This document states verbatim the following: “If there is a delay in issuing a work book to an employee due to the fault of the employer, or the inclusion of incorrect or illegal formulations of the reasons for dismissal, the employer is obliged to compensate the person for the earnings he did not receive during the delay.” And the day of dismissal is considered the day when the employee's pay is given to the dismissed person.
The woman was rejected in the district court because, as recorded in the court decision, she received a reprimand in March. Wrong decision - the Supreme Court responded to this and reminded its colleagues of the Labor Code. There is Article 279 there. It says that in the event of termination of an employment contract with the head of an organization before the end of the contract by decision of the owner, and in the absence of the fault of the dismissed person, the latter is paid compensation for the early termination of the employment contract. By the way, the Supreme Court recalled, a special resolution of the Constitutional Court was devoted to issues of such dismissal back in 2005. There, in particular, it was said that when dismissing a managerial employee who had not committed misconduct before the deadline, on his own initiative, the employer is obliged to provide reasons why he did so.
And in that decision of the Constitutional Court it was stated that the dismissed person must be provided with adequate legal guarantees of protection from the negative consequences of losing his job. Such protection guarantees also include compensation provided for by the Labor Code - for early termination of an employment contract with the head of the organization. Moreover, payment of compensation is simply a necessary condition for the early termination of an employment contract with the head of an organization in the absence of his fault. Otherwise, this is a violation of the dismissal procedure.
By the way
The Supreme Court noted: if the dismissed person was guilty, then in this case the employer is obliged to indicate a specific reason for dismissal each time.
And one more, but important point. If the text of the employment contract does not say anything about payment of compensation for early dismissal and does not specify its amount, then this means absolutely nothing: the owner of the enterprise is still obliged to pay compensation. True, the parties must agree on its size among themselves. And if it doesn’t work out, then settle the amount in court, taking into account the specific work. But in any case, the Supreme Court emphasized, compensation must be “fair.”
