What's new in dismissing an employee due to job reduction in 2021

Terms of termination of powers of a director

The powers of the manager are suspended at the time of documenting the decision to liquidate the company.
In case of bankruptcy of an LLC, such a decision can be made by the court, and in case of voluntary closure of the company - by the founders by voting at a general meeting. After the decision to close the company is made, the initiator appoints a liquidator or external manager who organizes the liquidation procedure and assumes the functions of managing the company for this period. The procedure for dismissing a director when closing a company may differ depending on the conditions under which the director works in the company and the reasons for the liquidation of the company.

Since the executive body is appointed for three or five years, the powers of the director may be terminated due to the expiration of the contract. In this situation, dismissal is carried out in the general manner - the same as in the case of ordinary employees. However, the director must be warned by the employer (company owner) no later than three days before the expiration of the employment contract.

The employer sends the employee a corresponding notice, which is signed by him or an authorized person (for example, the head of the human resources department).

Next, a dismissal order is issued, a corresponding entry is made in the work book (Part 4 of Article 66 of the Labor Code of the Russian Federation) and a calculation is made.

The activities of a business entity may be terminated:

1. at the request of the employer;
2. by order of creditors;
3. in the process of bankruptcy.

A manager who is not a founder is considered an employee. It is subject to generally accepted legal norms.

To ensure that the director, who is already aware of the impending removal from office, does not work “carelessly,” the liquidation commission is given recommendations on the development of a set of special instructions. They must define in detail the responsibilities for the transfer of all cases and documents. You must familiarize yourself with the newly created instructions against signature. During the two-month period, the founder is recommended to check their implementation.

In practice, it is often necessary to draw up an agreement on material obligations. In this case, recovery of the indicated losses can be carried out within a three-year period.

Also, the manager may be held vicariously liable for decisions he made that had a negative impact on the state of affairs of the organization.

Regulations

The process of terminating the activities of an LLC is regulated through civil law. It is also necessary to take into account the law issued at the federal level regarding LLCs. These acts indicate that the property of the organization and the resolution of other issues related to state management are redirected to the jurisdiction of the commission conducting the liquidation.

In this case, a certain sequence of actions is established that must be followed:

1. Within three days after the decision is made to terminate the company’s activities, an application must be generated and sent to the tax authority. This is required in order to make adjustments to the current register of organizations.
2. When the composition of the liquidation commission is formed, it is required to place a corresponding announcement in official sources. For example, this is done when using specialized media.

These actions must be completed before terminating your employment relationship with the head of the company. If they are passed, dismissal is allowed. In this case, you need to use the provisions of Articles 13 and 43 of the Labor Code of the Russian Federation. After this, the relevant powers are transferred in full to the commission.

In addition, the conditions that must be observed during liquidation are specified in the statutory documentation. It is worth considering that rules cannot be established there that would violate current legislation. In order for the actions in question to be lawful, it is necessary to indicate the exact time when the employment relationship with the director will be terminated.

Liability for violations of the law upon dismissal

The director of a liquidated enterprise has the legal right to a number of appropriate payments.

Firstly, all basic payments are provided, independent of dismissal:

1. salary (not fully paid by this time);
2. maternity payments;
3. sick leave;
4. travel allowances, etc.

Compensation for unused vacation time must be paid. The procedure for such payments to the dismissed director is determined by Art. 127 Labor Code of the Russian Federation.

Secondly, additional calculations are made:

1. Severance pay in the amount of average monthly earnings. It is issued even if the director immediately got a job in another place. Issues regarding the regulation of benefits are determined by Art. 178 Labor Code of the Russian Federation.
2. Two-month payment amount (1 1) subject to the exclusion of employment during this period.
3. Three-month payment amount (1 2) upon registration with the employment service within two weeks.

Payments higher than three months are not provided, except in the regions of the Far North. There the limit can be doubled.

For your information

When liquidating an individual organization, the reduction of all existing personnel, including directors, is carried out on an individual basis. Despite the apparent formality, in general the procedure must be strictly followed, taking into account legal norms. This will help avoid a number of conflict situations and penalties. Strict adherence to legal requirements allows you to avoid difficulties in resolving this issue.

When an organization ceases its activities, it is required to rely on the provisions of Federal Law No. 14, issued in 1998. In addition, certain articles of the Civil Code of the Russian Federation are taken into account. It is provided that a company can be liquidated only in specific situations.

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You need to go through certain steps:

1. Convene a meeting at which all founders will be present. Here the issue related to the reasons for termination of activity is to be considered and a final decision is made.
2. Appointment of members of the commission involved in the liquidation process.
3. Sending a notification to the tax service.
4. Start of activities of the formed commission.
5. At the final stage, the company ceases to exist.
6. Dismissal of a director - member of the liquidation commission

These articles indicate that after termination of relations with the director, his powers are transferred to the members of the created commission. It is permissible to include a dismissed company employee on this commission. It is worth considering that in such a situation, the former director is deprived of the opportunity to perform actions related to his previously held position.

If, during the termination of the employment relationship with the specified employee, the law is violated, then this is a labor offense. As a result, an administrative sanction is applied to the guilty person. In particular, they are described in the provisions of Article 5.27 of the Administrative Code.

When an official violates the law, the fine ranges from one thousand to five thousand rubles. For an enterprise, the fine becomes larger and ranges from 30 to 50 thousand rubles.

If the violation is committed a second time, the amount increases. For an official it becomes from 10 to 20 thousand, for a company - from 50 to 70 thousand.

If the liquidation of a company is carried out due to its bankruptcy, the procedure should be carried out at the stage of bankruptcy proceedings. Responsibility for organizing the termination of relations with the director of the company rests with the administrator appointed by the court. The specialist must, within 1 month after the court’s decision, notify all company personnel of the upcoming dismissal.

In case of bankruptcy of an enterprise, the dismissed manager has no right to receive compensation.

In this process, the responsible person must comply with the timing and order of procedures. Violations may lead to the following consequences:

• Violation of the deadlines and rules for notifying employees, including the director, may result in the dismissal procedure being declared illegal. And the company will be obliged to pay compensation to dismissed employees.
• Failure to notify the employment service may result in a fine being imposed on the responsible person in the amount of 30 to 50 thousand rubles. The specialist responsible for the notification may be suspended from his position for 3 months.

To correctly carry out the procedure for dismissing a manager during liquidation of a company, you should know and comply with the current legislation. In this case, the process of closing the enterprise will go faster without litigation and claims.

How are earnings and compensation calculated?

As soon as the dismissal order is signed, the employer must pay all compensation. Their list is absolutely standard and includes:

• Earnings for days worked, which is calculated using average daily earnings;
• Compensation for unused vacations;
• All other bonuses and payments due to the employee under the employment contract.

However, after the employee receives these payments immediately and in one amount, he is entitled to additional compensation, which is called redundancy pay. It represents the compensation that the employee will receive over the next two months, the amount of which will be equal to the average monthly earnings of the dismissed employee. Such payments stop as soon as the dismissed person finds a new job or, as mentioned above, after two months. Please note that in order to receive such payments, an employee must be registered with the labor exchange.

If the director is an employee

Registration of termination of an employment contract with a director working for hire should begin with the adoption of an appropriate decision at a meeting of the founders. The meeting also decides on the appointment of a liquidator. The results of the meeting must be documented in the Minutes.

If the director of the company is an employee, upon his dismissal, Art. 81 of the Labor Code of the Russian Federation “Dismissed due to liquidation of the enterprise” or Art. 278 of the Labor Code of the Russian Federation “Dismissed due to a decision on early termination of the contract.” In case of bankruptcy of a company, the day of dismissal of the director is considered the date of written notification of the founders about the entry into force of the court decision.

Consequences of violating the procedure

In some situations, organizations decide not to terminate the employment relationship with the director until the LLC is liquidated. During the specified period, the official has the opportunity to engage in his direct activities. It will be aimed at completing all processes related to the liquidation of the enterprise.

Such a decision by the members of the liquidation commission can be easily explained. This is due to the fact that the director is a fairly significant person in any company. It is he who knows the various aspects of economic purposes that exist in the organization.

In this situation, when terminating the relationship, you need to rely on the provisions of Articles 178 and 180 of the Labor Code of the Russian Federation. The following nuances should be taken into account:

1. A couple of months before dismissal, it is necessary to give this employee notice in written format that the company is ceasing its activities. Accordingly, the document states that the employment relationship with the director will be terminated for this reason.
2. During the same period, it is required to inform the employees of the central control center about the upcoming dismissal of employees.
3. Then an order is issued to terminate the employment relationship with the director. This official must be familiarized with it the day before dismissal.
4. On the last working day at the enterprise, it is required to make an entry about the dismissal in the work book.
5. In addition, the employee must be provided with a full payment. This happens on the same day when entries are made in the labor record. The severance pay in this situation is equal to the average earnings. The dismissed person is also entitled to receive payments in the specified amount for a couple of months after the termination of the employment relationship with him.

If during this time the person is unable to find a new job, then the employees of the Central Employment Center may decide that the payments will be extended for a month. The last day of work is considered the date when data about the enterprise was excluded from the relevant registers.

Payments to an employee upon reduction of his position

An employee whose position is being reduced is required to fill a suitable vacancy, if there is one at the enterprise. The employee has the right:

1. Keep her busy and continue working as before.
2. Don't agree to the offer.

When an employee chooses the second option, the reduction procedure starts. On the last day of work he must be given:

• earnings for the period worked;
• compensatory vacation payments if a certain number of rest days remain unused;
• severance pay, the amount of which, as a rule, is equal to the amount of the average monthly salary (Article 178 of the Labor Code).

A laid-off full-time employee must also be left with an average monthly salary until he finds a new job. Payments are made taking into account severance pay no more than 2 months elapsed from the date of dismissal.

Important! This period may last 3 months. The employment service authority has the right to make such a decision. A prerequisite is that the employee must contact their specialist within two weeks after dismissal.

If the director is the only founder

If we consider the sphere, companies can be created in which the sole founder is the director. The legislator allows such a person to draw up all the necessary documentation in his own name and manage the company. In this case, the sequence of actions when terminating relations with the director will look like this:

1. At the initial stage, a decision is made that it is necessary to terminate the company's activities. Then the composition of the commission involved in the liquidation process is appointed.
2. Notifications are sent to the fiscal authority.
3. An order is formed to terminate the employment relationship with the director. The sole founder is responsible for the drafting; he issues an act according to which he dismisses himself.
4. A corresponding entry is made in the labor record.
5. Then the activities of the liquidator begin. The main direction is representing the interests of the company in various bodies related to liquidation. He carries out such activities until the data about the company is deleted from the Unified State Register of Legal Entities.

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To clarify this issue, we need to consider a specific example. Citizen Sidorov is the sole founder of the company; on May 25, 2021, he decides that it is necessary to liquidate the company. In confirmation of this, he draws up a corresponding act.

On May 26, Sidorov sends a notice to the Federal Tax Service and fires himself. At the same time, on the same day the citizen makes the necessary entries in the labor record. This suggests that from May 27 he will act as liquidator.

In such a situation, the dismissal of a manager should be carried out as follows: the director-owner independently makes a unanimous decision to close the company and appoints a liquidator. The manager, who is the sole founder, has the right to suspend his activities at the enterprise by order of dismissal and confirm with his signature the corresponding entries in his work book, referring to Part 1, Clause 3, Article 77 of the Labor Code of the Russian Federation.

Some questions and answers

Question 1. Is the employee required to make a decision to transfer to the vacancy offered to him immediately, on the same day when he receives notice of the reduction of his position? Or does he have time to think?

Answer. The period within which an employee must make a decision is not established by law. Decision making does not fit into a specific time frame. An employee has the right to agree to fill a vacancy even on the last working day.

Question 2. The employer has no vacancies, and he cannot offer anything to the laid-off employee. Should this be documented somehow?

Answer. It would not hurt the employer to draw up a statement stating that there are no vacancies at his enterprise that he could offer to the employee.

How to properly prepare documents

When registering termination of employment relations with a manager, it is required to use the provisions of norm 180 of the Labor Code of the Russian Federation. This article indicates that certain documentation is required. At the same time, it is necessary to take into account the deadlines established for its publication. Including:

1. A decision made by the general meeting of founders. At the end of this event, a protocol is issued. It must indicate that the employment relationship with the manager is being terminated.
2. Notification. This document must be drawn up a couple of months before the dismissal takes place. An act is formed in free form. It requires stating the reason for termination of the relationship and the amount of benefits paid to the employee.
3. Employment history. To fill it out, you need to take into account the relevant Rules developed by the Government in 2003.

No other documents are drawn up during liquidation.

When terminating an employment contract with the manager of a liquidated Limited Liability Company, it is very important to know and correctly apply all the terms and norms of the current legislation. The entire process of liquidation of the company depends on the correctness of this procedure. Responsibility and literacy when dismissing a company director will help avoid labor disputes and litigation in the future.

Alert

The notice to the general director does not have a mandatory form and can be drawn up in any form. Sometimes, to notify the manager, an order is issued, with which he must be familiarized with a signature. When the manager works for a hired company, he must be notified 2 months before liquidation, and in case of bankruptcy - 1 month.

Alternatives to dismissal

It is worth remembering that job reduction does not necessarily lead to complete termination of the employment contract. As a rule, when a position is reduced, the employer can offer the dismissed employee another job. As a rule, this is either a new position, which is an alternative to the reduced one, or another workplace with similar requirements for the employee.

In addition, the employer has the opportunity to offer an employee who has been laid off a position to move to work in another branch or a position at another enterprise of the same organization. If the employer also offers training, then the employee can, at his request, be assigned to a completely new position, different from the original one.

The last alternative available to the employee is voluntary dismissal. On the one hand, such a step may seem very illogical - the employee is deprived of the opportunity to receive payments while looking for a new job. However, voluntary dismissal will help reduce the time until the employee is removed from his position and given his documents. Therefore, voluntary dismissal instead of dismissal due to layoff is used if the laid-off employee already has a place to work.

Documentation of the director's dismissal

The employment document must indicate not only the generally accepted details of the order, but also the number of the corresponding protocol. The liquidation of the organization is prescribed as the reason for removal from position (clause 1, part 1, 81, article of the Labor Code). Proper design is important for continuing your production career.

Important

The work book is handed over to the director, like others, on the day of dismissal. Other documents may be issued upon request. If the work book has not been claimed, it is stored in the archive department for up to 75 years.

Compensation payments

If a director is removed from office, the company cannot be liquidated until he and the rest of the employees have been paid all due amounts.

The types and amounts of payments to dismissed managers who work for a hired company are determined by Art. 181, 279 Labor Code of the Russian Federation. In this case, the minimum payment amount must be equal to three monthly payments for the manager’s labor. The maximum amount of compensation in this case is not established by law. Also, the amount of compensation for a dismissed manager can be determined by the terms of the employment contract signed by the parties when hiring a specialist.

However, despite the terms of the employment agreement, the amount of payments cannot be less than the amount established by law. In addition, if the manager did not use the allotted leave during the period of work at the enterprise, he is awarded compensation. If the manager is the founder of the enterprise, he can file a dismissal under Art. .181 of the Labor Code of the Russian Federation, which provides for the payment of severance pay.

Sometimes a company in which a director is an owner is unable to pay him benefits. In such situations, the manager, being the liquidator, can resign of his own free will without paying benefits.

The legislator points out that it is unacceptable to stop the company’s activities until it has made full payments to everyone. This includes creditors and employees of the enterprise. Payments depend on which category the director belongs to. For example, if we consider the director as a hired employee, then the norms of Articles 181 and 2790 of the Labor Code of the Russian Federation will apply.

These provisions reflect what payments employees can expect upon termination of the company's activities. The minimum amount of payments has been established - it is three salaries. Salaries that were previously paid to the employee monthly are taken into account.

The legislation does not indicate how long such funds will be provided to the citizen. For this reason, it is also necessary to take into account the provisions of the employment agreement under which the person worked. It specifies the payment terms.

If a citizen is the founder of a company, then use the provisions of Article 279 of the Labor Code of the Russian Federation. Therefore, the manager formalizes the termination of the employment relationship with himself simultaneously with the liquidation process. However, he is also entitled to severance pay.

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Dismissal of the general director during the reorganization of an LLC

The manager has the right to terminate the employment contract early, but he must notify all owners of his intention to resign, in writing and no later than one month in advance (Article 280 of the Labor Code of the Russian Federation). Letters are sent to all founders, owners, shareholders according to the register, with notification of delivery.

If a manager resigns at his own request, he is not paid monetary compensation in an amount not less than three times his average monthly salary.

When a company merges or joins another company, the rights and responsibilities of the directors of the subsidiary are transferred to the head of the newly created organization.

The issue of terminating the employment agreement with the director or maintaining him in office during the reorganization of the company is decided by the owners at a general meeting.

Mistakes when cutting positions

When cutting positions, an employer often makes minor mistakes and significant miscalculations. Both of them can become the basis for reinstatement of an employee at work.

The most common errors include the following:

Often, the employer does not have criteria for assessing qualifications and labor productivity, which are mandatory in the layoff procedure. The court may recognize explicit criteria as subjective.

Important! It is reasonable to entrust the downsizing procedure to specialists with legal education, or to carry it out under their supervision. Then the likelihood of errors will decrease significantly.