Early dismissal due to staff reduction: payments, example of calculation, severance pay and employee compensation

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Published: 05/17/2016

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Reducing the number of workers largely depends on the employer's decision. Labor legislation gives him the right to take initiative in this case. One of the manifestations of this initiative is that an employee who is being laid off will not be able to leave work early without the consent of the immediate manager of the organization or enterprise.

And the employee’s reasons may be quite valid. For example, he has found a new job and wants to immediately begin fulfilling his duties. To obtain management’s consent to early termination of an employment contract, the employee must write and submit an application.

However, the presence of such a document does not guarantee that the employee will get what he wants . The legislation gives the right to early care in accordance with Federal Law No. 197, however, it does not impose such an obligation on employers. That is, the decision in this case will depend on the goodwill of management.

How to write a statement?
Early dismissal procedure
What payments are due?
Controversial issues

Regulatory basis for early termination of a contract during layoffs

Termination of employment relations with the employer due to a decrease in the number of people employed in the company is carried out on the basis of the provisions of clause 2 of Art. 81 Labor Code of the Russian Federation. When deciding to reduce the company's staff, the personnel to be dismissed are warned 2 months before the date of termination of the contract. At the same time, for seasonal personnel this period is reduced to 7 days, and for a fixed-term contract - 3 days.

Attention

At the same time, Art. 180 of the Labor Code of the Russian Federation is allowed by decision of the employer, but with the consent of the employee, termination of employment relations before the expiration of the specified period.

For a long time, disagreements arose among experts due to the wording of this paragraph of the article.

Clarity was brought to this issue after the appearance of the Constitutional Court of the Russian Federation of September 29, 2015 No. 1881-O, which stated that early termination of a contract at the initiative of the worker is not prohibited and is quite possible in the absence of objections from the employer

Prerequisites for terminating the contract before the end of the notice period

The initiator of early dismissal during layoffs can be either the person being laid off or the employer who previously provided him with work. The desire of an individual to terminate the contract before the end of the allotted period of notice of dismissal, as a rule, is explained by the fact that he has already found a new job and the potential employer is not ready to wait so long for him.

In this case, he notifies the company of his intention and, in the absence of objections from the current employer, he is fired due to staff reduction.

Information

If an agreement fails, he always has the opportunity to write a statement of his own free will, without receiving the amounts due to him according to the law.

For an employer, there are many more reasons for offering a redundant person to vacate his or her job early:

Hostile relationships and excessive conflict of the dismissed person;
There is a need to quickly release the occupied space being reduced for other production purposes;
The need for accelerated staff reduction in connection with the upcoming merger, reorganization, etc.

If the initiative comes from the employee, then he can express it both in written and oral form. The subsequent termination of the contract in connection with the reduction and the issuance of the corresponding order will, in fact, be an expression of consent by the action on the part of the employer.

In this case, no additional written agreements are required. If early dismissal is the employer’s idea, he needs to notify the worker in writing against signature, and only after that can he issue a dismissal order due to the reduction.

What is early dismissal during layoff?

First, let's try to understand the question: early layoff, what is it?
We should start with the fact that early staff reduction is an opportunity provided for by law for the employer. For various reasons, staff may be reduced. But is it possible to fire an employee or quit without working the required two weeks?

Let's start with the fact that this two-month period is clearly defined by the Labor Code of the Russian Federation, since the situation under consideration at the enterprise implies a significant change in the terms of the contract concluded with the employee.

Therefore, according to the law, the boss is obliged to notify in writing his subordinate, whom he plans to reduce, that early dismissal due to staff reduction is coming and the contract will have to be terminated.

Proof that the employee was informed of this fact will be his personal signature on the document.

Note: if, nevertheless, an employee quits before the designated period against his will, he has the right to subsequently demand through the court that he be returned to work by filing a claim against the company about this.

Who can be the initiator?

In this case, it is assumed that any citizen can be fired before the legal 2 months have passed.

Early dismissal due to reduction can be initiated by:

employer;
the worker himself.

The administration of the enterprise may itself suggest that one of the employees finish work ahead of time. Early dismissal in the event of staff reduction at the initiative of the employer requires the consent of the employee. If the latter gives his consent to this, he must sign a document to this effect.

If there is no positive response from the employee in writing, no one has the right to dismiss before the expiration of the notice period for layoffs , that is, the two-month period established by law.

If the employer nevertheless dismisses his employee before this time and without the latter’s written consent, then such dismissal is considered inconsistent with the law and the employee can go to court to protect his violated rights.

The employee himself, on his own initiative, has the right, before 2 months have passed, to write a statement that he is resigning and to leave if, for example, he has already managed to find a new job for himself and is afraid that the vacant position will soon be filled by another candidate.

Important! the main thing here is to agree with management so that it does not prevent the employee from leaving earlier than expected, and the boss signs all the necessary documents.

Key points related to early redundancy

Initially, both parties to the employment contract are notified of the upcoming headcount optimization. The severance of an employment relationship before the deadline for working out is preceded by several mandatory stages:

The company issued an order about the upcoming reduction, and employees were given notice that they would be fired in 2 months.
Those being dismissed sign the appropriate written notices and submit them back to the personnel department.
Attention
If any of the personnel refuses familiarization, a certificate of refusal to familiarize is drawn up, which also remains in the personnel service.
Read also: Order of the Minister of Defense of the Russian Federation dated June 22, 2007 N 222 Moscow “On measures to implement in the Ministry of Defense of the Russian Federation the resolution of the Government of the Russian Federation dated 2

The sequence of actions for early dismissal should then be as follows:

Informing one party of an employment contract to the other party of its intention. The law does not establish a clear form for such notification. For this, a statement written by the employee or a written notice drawn up by the employer and handed to him against signature can be used.
Reaching an agreement on a future early separation.
Attention
In the event of an initiative on the part of the employer, it is advisable to formalize in writing the consent received from the hired personnel to terminate the contract before the end of the two-month period. It can additionally describe the conditions under which the reduction will be made, in particular all the payments due to the staff.
Drawing up a dismissal order due to layoff before the end of the notice period. Such a document can be generated either in any form or using the standard T-8 form, approved by Decree of the State Statistics Committee of the Russian Federation No. 1 of 01/05/2004. The person being reduced must be familiarized with the specified document against signature. At the same time, a certificate is drawn up - a calculation of the due accruals in connection with the dismissal. The necessary entries are made in the employee’s work book.
Payment of all due components of wages, including payment for time worked, as well as those established by legal acts in the event of a reduction in guarantees and compensation. All specified amounts must be issued to the employee strictly on his last working day.
Issuance of all documents required by the employee upon dismissal. A work book and a certificate of earnings in form 182 N are required. Moreover, based on a written application from the employee, he may be issued other documents related to employment with a former employer.

Important

After this, the dismissal procedure can be considered completed.

An example of calculating compensation for early dismissal

For clarity, let's look at an example. Let’s say an employee was notified of a layoff on May 30, 2020. The notice period for dismissal in this case expires on 08/01/2020, but he agreed to resign on 07/03/2020.

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First, you need to calculate the average daily earnings of the dismissed employee according to the rules of the regulations on average earnings, approved. Government Decree No. 922 dated December 24, 2007 (hereinafter referred to as the Regulations). For this:

We determine the billing period in accordance with clause 4 of the Regulations. In our case, this will be the period from 07/01/2019 to 06/30/2020, that is, 12 months (calendar, from the 1st to the 30th/31st) preceding the dismissal.
We count the number of working days in a period. You need to focus on the work schedule in the organization. Provided that a 5-day working week with days off on Sunday and Saturday was established for this employee and he did not work only on national non-working days and holidays, there were 246 working days for the billing period.
We calculate days worked (clause 5 of the Regulations). Let’s assume that during the billing period, the employee was sick for 3 working days and was on vacation for 28 working days. Thus, out of 246 days, only 215 are considered worked.
We determine the basis for calculating compensation in accordance with paragraphs. 2–3 Provisions. Let’s assume that during the billing period the employee was accrued 430,000 rubles, of which salary is 400,000 rubles, vacation pay is 27,000 rubles. and sick leave payments - 3,000 rubles. The base in this case is 400,000 rubles. (other payments are not included in the calculation).
We calculate the average earnings per day by dividing the base by the number of days worked. In our case, the average daily earnings will ultimately be 1860.47 rubles.

Compensation is then calculated by multiplying the average daily earnings by the number of working days remaining before the notice period expires. For the period indicated in the example from 07/04/2020 to 07/31/2020 there will be 20 working days. Thus, by multiplying 1860.47 rubles. at 20 we will receive a compensation amount equal to RUB 37,209.40.

What to write in the work book when terminating an employment contract early

Based on the logic of the content of the procedure itself, it is necessary to enter into the work book as a reason for termination of labor relations a reduction in the number/staff of the organization (clause 2, part 1, article 81 of the Labor Code of the Russian Federation). Approximate content could be as follows:

“Dismissed due to a reduction in staffing levels on the basis of clause 2, part 1 of Art. 81 Labor Code of the Russian Federation."

Next to it is the number and date of the dismissal order, as well as the date the entry was made, the signature and transcript of the signature of the inspector who made the entry in the book. If the company has a seal, it is additionally expected to be affixed. After the specified entry is made, the person who quits must receive the book in hand.

List of payments due upon early dismissal

Personnel who resign due to staff optimization, but before the end of the work period after being informed of the termination of the employment contract, are entitled to the same payments as in the case of termination of employment strictly after the end of a two-month period. The composition of the amounts that must be paid to the employee is as follows:

Payment for actual work performed on days worked in the month of termination of the employment contract.
The employee is paid compensation in the amount of the average salary for the time period remaining until the end of the working period after notification of dismissal (clause 3 of Article 180 of the Labor Code of the Russian Federation).
Severance pay in the amount of average monthly salary (paid within 2 months).
If an employee registered at the employment center within 2 weeks after termination of the contract and was unable to conclude an agreement with the new employer, he is entitled to be paid the average salary for the third month after dismissal (Article 178 of the Labor Code of the Russian Federation).

Early dismissal due to staff reduction: example of payment

Let's consider an example of payment for early dismissal due to staff reduction at the initiative of the employee.

Accountant Rozova A.A. reported a reduction effective June 1, 2016. She has a monthly salary at the enterprise of 25,000 rubles. I filed a resignation letter by agreement with the employer effective April 20.

To calculate all benefits and compensation for early dismissal during layoff, it is necessary to calculate the average daily earnings.

Reference. Usually the calendar year is taken for calculation.

But there may be other options. They are used if the employee has been employed by the enterprise for less than a year or was fired in the month of hiring.

The calculation is made for the year : from April 1, 2015 to March 31, 2021. This period includes 253 working days.

During this time, the accountant was on sick leave in October 2015 - 5 working days. The salary in October was calculated in the amount of 17,250 rubles.

Important! The days for calculating average daily earnings do not include time of incapacity for work, weekends, holidays, and vacation pay. Also, payments for sick leave and vacation pay are excluded from the total amount for the year.

Severance pay

How to calculate payments for early termination of an employment contract during layoff?

The number of days Rozova worked as an accountant for the selected period will be 253-5=248.

Let's find the amount earned per year:

RUB 25,000*11 months+ RUB 17,250=RUB 292,250

Let's calculate the average earnings per day:

292250 rub. /248 days=1178.43 rub.

We get the amount of severance pay:

1178.43 rub.*22 days=25925.46 rub.

Important! This benefit is not taxed if its amount is less than three times the average salary.

Benefit for the remaining days before the date of dismissal due to reduction

The amount of the benefit is calculated as follows : days in April from the date of signing the dismissal order 21-13 = 8 added with days in May 19. Total for 8 + 19 = 27 days the company must pay compensation.

1173.09 rub.*27 days=31673.43 rub.

Compensation for unused vacation

How is compensation paid for early dismissal during layoffs if there is unused vacation?

The amount of unpaid leave upon termination of the contract is calculated as follows. We count the number of full months of work. In our example, there are 11 of them. We multiply by the generally accepted coefficient 29.4 - the average monthly number of days in a month.

We calculate how many days of unpaid vacation the payment will be made. First you need to calculate the days in October, since this month was not fully worked out:

29.4/31*26 (calendar days included in the calculation in October) = 24.66 days.

To calculate vacation, the following definition of calendar days is used:

29.4 days*11 months+24.66 days=348.06 days

Average earnings for vacation pay per day of work:

292250 rub./348.06 days=849.42 rub.

Amount of compensation for unused vacation:

849.42 rubles * 28 days = 23783.76 rubles.

Important! If the leave was taken as an advance, upon reduction, its amount is not recovered from the dismissed employee. In case of normal termination of a contract, a deduction is made from the employee.

Salary for hours worked in the month of dismissal

In April, 13 days were worked, 21 working days this month. Salary for working hours in the month in which the dismissal occurs can be calculated as follows:

25,000 rub./21 days*13 days=15,476.19 rub.

Second month for the duration of the device

They are calculated with severance pay included and are salary for the duration of employment. For two months 42 working days:

1173.09 rub.*42 days=49269.78 rub.

49269.78 rubles - 25925.46 rubles (amount of severance pay) = 23344.32 rubles.

Total

The final payment in case of reduction and early dismissal is made up of all calculated amounts:

25925.46 rub. +31673.43 rub.+23783.76 rub.+15476.19 rub.+23344.32 rub.=120203.16 rub.

Possible violations by the employer upon early termination of the contract

One of the most common tricks on the part of the employer during dismissal is pressure on the employee to formalize the early termination of the employment relationship at his own request or by agreement of the parties.

In this case, the company will be able to save on additional payments, because no compensation is provided for the employee for such reasons for parting with the employer.

Attention

The employee should clearly write in his resignation letter the conditions under which he agrees to terminate the contract and what payments he is entitled to. Thus, he will protect himself from abuse by the employer.

In addition, the organization should understand that any pressure on an employee to make a decision beneficial to the company is illegal and can lead to negative consequences. In particular, forcing the employee to terminate the contract at his own request, through psychological influence on the employee, will most likely lead to litigation.