Connections with the liquidation of the enterprise. The current procedure and features of the dismissal of an employee in connection with the liquidation of the enterprise

The liquidation of an organization, regardless of its organizational and legal form, is associated with various kinds of difficulties.

The closure is especially difficult for staff members, who, because of this, lose not only their positions, but also a permanent source.

The labor legislation of the Russian Federation protects its citizens, whom the management dismisses due to the liquidation of the company.

General procedure for the dismissal of employees during liquidation

Article 81 of the Labor Code of Russia regulates the procedure for dismissal of employees at, and also provides for additional compensation payments for them.

The procedure for closing an organization is as follows.

. The authorized body makes a decision to liquidate the company. The corresponding decision can be taken in a judicial proceeding.

. The head issues an order for the dismissal of full-time employees from their positions. This internal document is compiled on the basis of a decision made by the employer (form T-8).

. The procedure for dismissal during the liquidation of an enterprise provides for the employer to submit data on each full-time employee to the local employment service.

These documents should contain the following information: position, profession, salary, specialty.

Federal legislation provides for deadlines for submitting data - 2 months before dismissal.

The form that is submitted to the employment service is approved by Decree of the Government of the Russian Federation No. 99 of 02/05/1993.

. Dismissal during liquidation requires the employer to submit a notice to the local union. He must transfer the data no later than 3 months before the start of the liquidation procedure.

. If the company has an employee who is in the military, then the head must send a notification to the local military registration and enlistment office. The form of such a document was approved by the General Staff of the Armed Forces of the Russian Federation on April 11, 2008.

. Each employee must be personally acquainted with the order, about which he signs in the appropriate accounting register. For this, federal legislation sets a deadline - 2 months before the completion of the liquidation procedure.

. On the last working day, the employer must issue work books to all employees, in which marks of dismissal are affixed (the basis is paragraph 1 of article 81 of the Labor Code of the Russian Federation).

On the same day, the final settlement of wages and other payments must be made with employees.

. If the employee of the company was withheld on the basis of a court decision, the head notifies the local bailiff service of the liquidation of the company.

He must give them, in addition to the writ of execution, a labor agreement and other documents relating to this issue.

. If alimony was withheld from the employee, the employer informs the recipient of the cash payments about his dismissal within three days (Article 111 of the Family Code of the Russian Federation).

. Mass dismissal of workers is carried out in several stages. First of all, contracts with employees are terminated. After that, labor relations with economic services and the administrative apparatus are terminated.

With specialists who are involved in the liquidation procedure, labor relations are terminated last.

Notification of employees about the liquidation of the enterprise

The procedure for the liquidation of an enterprise, the dismissal of employees is regulated by the federal legislation of Russia.

It is the responsibility of the employer to send closure notices to:

• all full-time employees 2 months before the termination of employment contracts;
• employees who are engaged in seasonal work are notified no later than 7 days before the termination of the contract;
• those employees with whom labor contracts were concluded no later than 2 months before the liquidation, notifications are sent 3 days before their termination;
• if the organization has been recognized, then its full-time employees are notified of the upcoming dismissal (selected on a competitive basis) 1 month in advance;
• if the employer is ready to pay compensation to employees, then he can terminate employment agreements with them ahead of time established by law.

The notification form is drawn up in free form. It must contain the necessary details, information that the dismissal will be carried out in connection with the liquidation of the enterprise, the signature of the head and the seal of the company.

In the event that the employee refuses to put his signature on the document, an appropriate act is drawn up in the presence of 2 witnesses.

Now the 2-month period before the date of dismissal will be counted from the date of signing the act.

If an employee of the company is on a business trip at the time of distribution of notifications, then the manager recalls him for delivery against the signature of the document.

When the manager fails to familiarize the employee with the notice, he can send it to him at his home address.

To do this, you will have to issue a registered letter, an inventory of attachments and a mail notification form, which, after signing by the recipient, will act as an evidence base.

From the date indicated in it of receipt of a registered letter, a 2-month period will be counted until the termination of the employment contract.

Letter of resignation due to the liquidation of the enterprise

The dismissal of employees during the liquidation of the enterprise, in accordance with the regulations of the Labor Code of the Russian Federation, must be documented.

The head issues orders to terminate employment contracts (form T-8 or T-8a).

If dismissal is carried out by agreement of the parties, then the order can be signed ahead of schedule.

To do this, the manager must receive written confirmation from the employee, as well as agree to pay compensation to him.

In the event that an employee is dismissed during the liquidation of an enterprise, the order is signed 2 months after notification.

After familiarizing each employee with the order, appropriate entries are made in their work books.

It is mandatory to indicate the number of the article of the Labor Code of the Russian Federation, according to which the dismissal was carried out, as well as the number and date of the order.

Dismissal of maternity leave and pregnant women during the liquidation of the enterprise

The dismissal of a maternity leave in connection with the liquidation of an enterprise is carried out in the following order:

1. 3 months before the termination of the employment contract with the maternity leave, the employer notifies the trade union, 2 months before the employment service.
2. 2 months before the dismissal of the pregnant woman is issued, a corresponding notification is sent to her.
3. An order is issued, with which the maternity woman will have to familiarize herself and sign in the appropriate register. If it is not possible to obtain a signature, then an act is drawn up.
4. An entry is made in the work book that the maternity leave was dismissed during the liquidation of the enterprise.
5. The final settlement is carried out, all documents and certificates are issued.

Upon dismissal in connection with the liquidation of the organization, maternity leave can count on the following types of benefits and compensation:

• weekend;
• for child care;
• pregnancy (for the entire period of vacation);
• for unused vacation;
• for termination of the employment contract (additional compensation).

After dismissal, the maternity leave must be registered with the local employment service in order to continue receiving the payments due to her.

The allowance will be transferred to her card account or in the form of. She needs to submit the following documents to this authority:

• application of the established form;
• sheet of temporary disability;
• extract from the work book.

Despite their status, which is sacredly protected by federal legislation, women on maternity leave cannot exercise their right to retain their position during the liquidation of the company. They are notified of the upcoming dismissal on a general basis.

Dismissal of managers and officials during the liquidation of the enterprise

When an organization is liquidated, the entire management team may be fired. For example, the general leaves his position on the basis of a decision made by the enterprise.

In accordance with the regulations of the Labor Code, this fact must be recorded. This document will indicate the date of dismissal of the director. An entry will be made in the work book of the general director, in which there is a link to the protocol.

It is this document that will be the basis for terminating the employment contract with the director.

The dismissal of the head due to the liquidation of the company is carried out in a certain sequence.

STAGE 1. MEETING OF FOUNDERS

If we are talking about a limited liability company, first of all, a meeting of founders is held, at which everyone is accepted.

STAGE 2. LIQUIDATION COMMISSION

In the process of carrying out the liquidation procedure, the owners of the organization appoint a special commission, the functions of which are not only to draw up the relevant documentation.

She is authorized to dismiss the head from her position at the moment when the decision to close was made.

Since for several months the company will continue - albeit within strictly limited limits - economic management, it will not be able to do without a director.

During this period, the functions of the head will be performed by the chairman of the liquidation commission.

A commission may be appointed by the body to which the decision on liquidation was issued.

STAGE 3. APPOINTMENT OF A LIQUIDATOR

If at the general meeting of the founders it was decided to appoint the head to the position of liquidator, he will be able to quit at the very last turn.

An entry in his work book will be made after the organization ceases to exist as a legal entity and the relevant documentation is received from the Federal Tax Service (confirming this fact).

STAGE 4. NOTIFICATION OF TERMINATION OF THE CONTRACT

If the head of the liquidation commission assumes the functions of the head, then the termination of the employment relationship with the director will be carried out according to the standard scheme.

When dismissing the staff of the company, no difference is made between ordinary workers and employees of the administrative corps.

Everyone, including the director of the enterprise, is given a notice 2 months before the termination of employment contracts.

After that, orders are issued that bring to the attention of the employees of the liquidated enterprise.

In the corresponding accounting register, he puts his signature, which will indicate that he has been informed of the upcoming dismissal.

Dismissal due to the liquidation of the company may be carried out by decision of the owners or the director.

The procedure is carried out according to the standard scheme: notification, issuance of an order, signature in the register, issuance of a work book, final settlement.

The chief accountant has the right to demand compensation from his company for the loss of his position and source of monthly income.

The economic crisis in Russia has affected not only ordinary citizens, but also legal entities: in the news feeds, you can increasingly see that this or that organization has ceased to operate, sells property due to debts and dismisses all employees. This procedure is called the liquidation of the enterprise. Literally overnight, people who have worked for years in one place are deprived of the opportunity to further earn money and are forced to look for a new job.

At the legislative level, a system of temporary material support is provided for persons dismissed in connection with the liquidation of the organization. But what to do if the employer violates the established calculation procedure and does not pay severance pay? In such a situation, you should not try to solve the problem yourself, because such issues require legal training.

Professional lawyers working online are always ready to come to the rescue. You just need to enter your question in the feedback box or leave a comment under the article, and the specialist on duty will provide competent advice within a few minutes.

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The dismissal of employees on liquidation is one of the ways to terminate an employment contract at the initiative of the organization's management, provided for by the Labor Code of the Russian Federation. The key point here is the fact of the absence of any economic activity: the company ceases to exist legally and in fact. This is the case when the whole state is paid, including the most socially vulnerable employees, for example, pregnant women and those who are on parental leave.

Part 1 of Article 81 of the Labor Code of the Russian Federation applies not only to legal entities of any form of ownership (private and state), but also to individual entrepreneurs (in the event of bankruptcy or recognition as such in court, as well as the death of a citizen engaged in entrepreneurial activity).

All stages of processing the dismissal of employees and settlement with them upon liquidation are clearly regulated by the Labor Code of the Russian Federation.

This is due to the desire of the legislator to protect citizens who find themselves in a difficult economic and psychological situation as much as possible from the arbitrariness of the employer. Losing a job is a tragedy for any person, but it is doubly difficult for those who especially need it, but are forced to start all over again (for example, working pensioners).

The procedure for issuing layoffs

1. Sending information about layoffs in connection with the liquidation to the employment authorities and trade unions. The complete cessation of the activities of a legal entity often means mass layoffs. Therefore, in accordance with the Labor Code of the Russian Federation, the organization must notify not only the trade unions of the upcoming procedure (at least 3 months in advance), but also the employment authorities. This is done by submitting a list of the dismissed, including all categories of workers: pregnant women, persons on parental leave, seasonal workers, pensioners, temporarily disabled, etc.

The company must also send information about the liquidation to all social funds (pension and social insurance).

In case of violation of the requirements established by law regarding the deadlines for notifying trade unions and employment authorities of cuts, the organization is subject to administrative liability in the form of monetary fines.

1. Employee warning. Each employee must be notified of the upcoming liquidation procedure and subsequent settlement at least 60 days before their actual dismissal. Thus, the state provides an opportunity to search for a new job within two months. This document must be drawn up in two copies. Having familiarized himself with it, the employee must sign and keep one copy with him.

The legislator does not provide for a unified sample of a notice of reduction due to liquidation, therefore each organization has the right to develop its own form. Mandatory requirements are only the issuance of the document on letterhead and the signing of the document by an authorized person with a seal.

There may be situations when an employee, for some reason, refuses to receive a notice of dismissal and sign it. A lawyer or Human Resources officer must draw up an appropriate resignation act in the presence of several witnesses. It is also necessary to send the specified warning by registered mail to the address of the actual residence of the citizen, which he indicated in the application form when applying for a job. This simple procedure will allow the legal entity to defend its interests in court if the employee wants to recognize his calculation as illegal.

It is also possible to terminate the employment contract before the date specified in the warning: this requires the consent of both parties (the company's management and the employee himself). But in this case, the employee is entitled to additional compensation in addition to the main calculation, which is calculated based on his average earnings and the period specified in the warning about the upcoming dismissal (Article 180 of the Labor Code of the Russian Federation).

1. Issuance of orders. Since, according to the Labor Code of the Russian Federation, in case of reduction due to liquidation, the initiator of the dismissal is the management of the organization, the employee does not need to write any statements requesting the termination of the employment contract. Within two months, personnel officers themselves prepare orders in the following forms:

• T-8. It is used if the dismissal order is issued for each employee of a legal entity.
• T-8a. It is used in situations where all employees subject to dismissal are listed in one order at once. Since all positions without exception are subject to dismissal during the liquidation of an enterprise, the entire staff is drawn up in the form of a list in the order in the form of T-8a.

Regardless of the form of the reduction order, each employee is obliged to familiarize himself with it and put a personal signature and date. The organization is obliged to give the employee a copy of the order, if the latter has expressed such a desire. When an employee refuses to sign an order for his dismissal, a corresponding entry is made on the document and an act of refusal is drawn up in the presence of several witnesses.

An order signed by a citizen in the form of T-8 is enclosed in his personal file.

After all staff members have read and signed the order in the T-8a form, photocopies are taken from it according to the number of persons indicated in the document. All these copies are subject to certification by an authorized employee, after which they are filed in personal files.

1. Making an entry in the work book. Since on the last day of labor activity at the enterprise, the management is obliged to return the work book to the citizen, a corresponding record of dismissal is made in it on the basis of Part 1 of Article 81 of the Labor Code of the Russian Federation. If on that day the employee could not receive it, the employer must send him a telegram with an offer to appear for her or give his consent to send documents by mail. These actions will allow the legal entity to avoid fines for violating the deadlines for issuing a work book.
2. Final settlement with staff members.

Retirement payouts

According to the Labor Code of the Russian Federation, on the last day of work in a liquidated organization, a citizen is entitled to a full financial settlement. It consists of the following payments:

• basic salary under an employment contract;
• salary arrears, if any;
• reimbursement of sick leaves, unused vacations - on a general basis;
• a special allowance applied in the event of termination of the employment contract in connection with the liquidation under Part 1 of Article 81 of the Labor Code of the Russian Federation. This allowance is equivalent to the employee's salary for one month, excluding bonuses and any allowances.

In addition to the main calculation, the employer is obliged to support the financial situation of the dismissed persons over the next two months by paying a severance pay in the amount of the basic salary. However, if during this period the former employee has found a new job, then he loses the right to receive the specified payment.

An employee of a liquidated organization has the opportunity to extend the term for receiving severance pay for another month. To do this, he needs to contact the employment service at his place of residence no later than two weeks after his dismissal. And, if he could not find another job in the allotted 2 months due to the lack of a suitable job, the former employer is obliged to pay him a sum of money equal to his monthly earnings.

It must be remembered that if employees were laid off under the article of the Labor Code of the Russian Federation in connection with the liquidation of the enterprise, but it was not excluded from the unified register of legal entities and continues its economic activity, then the dismissed persons have the right to be reinstated in their previous position in a judicial or pre-trial order, despite the settlement made with them.

General rules for the dismissal of employees during the liquidation of an organization
After the founders decide to stop this type of business and liquidate the organization, a liquidation commission is appointed, to which all powers to manage the organization are transferred, including functions related to the dismissal of employees (Article 62 of the Civil Code of the Russian Federation). In accordance with paragraph 6 of Article 22 of the Federal Law of 08.08.2001 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”, the organization is considered liquidated from the moment an entry is made in the Unified State Register of Legal Entities.
Please note: if the liquidation of the organization did not take place, then all employees dismissed earlier in accordance with paragraph 1 of Article 81 of the Labor Code of the Russian Federation can be reinstated in their previous jobs by a court decision. That is, it is lawful to dismiss personnel on this basis if the organization is really being liquidated and, in accordance with the legislation of the Russian Federation, a decision has been made to terminate activities without transferring rights and obligations by succession to other persons. This follows from article 61 of the Civil Code of the Russian Federation and paragraph 28 of the decision of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.
Thus, the liquidation of an organization should not be confused with a change in the owner of its property or a change in the jurisdiction (subordination) of the organization, as well as with its reorganization (Article 75 of the Labor Code of the Russian Federation).
Since the liquidated organization has no legal successors, all employees without exception are subject to dismissal, including pregnant women (Article 261 of the Labor Code of the Russian Federation), employees with children under the age of three, single mothers, persons under 18 years of age (Article 269 of the Labor Code of the Russian Federation). RF), as well as employees who are on vacation or on sick leave (Article 81 of the Labor Code of the Russian Federation). For example, an organization that is in the process of liquidation is generally entitled to terminate an employment contract with an employee under the age of 18. This means that the consent of the state labor inspectorate and the commission for minors and the protection of the rights of such workers is not required (Article 269 of the Labor Code of the Russian Federation).
Any organization terminating its activities is obliged to comply with the sequence and timing of measures related to the termination of employment contracts with employees. This will help to avoid possible conflicts with individual employees, unjustified material costs associated with legal costs, and other negative consequences.
The sequence of actions of the employer in relation to the laid-off workers during the liquidation of the organization is shown in the diagram (see figure). Let's consider it in more detail.
Notification of the employment authority
If the organization is liquidated and the termination of employment contracts with employees is inevitable, the employer must notify the employment service body in writing no later than two months before the start of the relevant activities. The notification indicates the position, profession, specialty and qualification requirements for employees, the terms of remuneration for each of them. This obligation is enshrined in paragraph 2 of Article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On Employment in the Russian Federation” (hereinafter - Law No. 1032-1). The form of notification is not established by Law No. 1032-1, therefore it is drawn up in any form.
If the decision to liquidate the organization leads to mass layoffs, then the notification must be submitted no later than three months in advance (Article 180 of the Labor Code of the Russian Federation and clause 2 of Article 25 of Law No. 1032-1). The criteria for mass layoffs are determined in industry and territorial agreements (Article 82 of the Labor Code of the Russian Federation).
For example, according to the Industry Agreement on Organizations of the Federal Agency for Special Construction for 2008-20102, layoffs of more than 10% of the payroll are considered mass. Therefore, an organization belonging to the specified industry and in the process of liquidation must submit a notification to the employment center authority no later than three months before the dismissal of all employees on the payroll.
In a situation where there are no sectoral and (or) territorial agreements, the rules established by the Regulations on the organization of work to promote employment in conditions of mass dismissal are used as a basis3. The said provision also contains notification forms for mass layoffs of workers.
Law No. 1032-1 does not directly establish liability for the employer’s failure to fulfill this obligation, but for failure to provide or late submission of information (information), the employer may be held administratively liable in accordance with Article 19.7 of the Code of Administrative Offenses of the Russian Federation. The fine for an organization is from 3,000 to 5,000 rubles, for an official - from 300 to 500 rubles.
Union Notice
The norms of the Labor Code, which provide for the mandatory participation of a trade union organization in considering issues related to the termination of an employment contract at the initiative of the employer, do not provide for cases of dismissal in connection with the liquidation of the organization (Article 82 of the Labor Code of the Russian Federation). At the same time, in accordance with paragraph 3 of Article 21 of Law No. 1032-1, the mass dismissal of workers must be carried out after prior (at least three months) notification in writing to the elected trade union body in the manner prescribed by labor legislation. A similar provision is contained in paragraph 2 of Article 12 of the Federal Law of January 12, 1996 No. 10-FZ “On trade unions, their rights and guarantees of activity”.
Picture. Scheme of actions of the employer in case of dismissal of personnel in connection with the liquidation of the company
Thus, the measures related to the dismissal of employees during the liquidation of the organization that meet the criteria for mass character must be notified in writing to the trade union body no later than three months before the start of the dismissal. The notification is made in any form. For convenience, you can submit a notification in the same form as in the employment agency.
Employee notification
Employees of the organization (including part-time workers) are notified of the dismissal in connection with the liquidation of the legal entity against signature indicating the date of familiarization with this document and at least two months before the day of the upcoming dismissal. Employees working under employment contracts concluded for up to two months are notified of their dismissal at least three calendar days in advance (Article 292 of the Labor Code of the Russian Federation), and persons employed in seasonal work - at least seven calendar days in advance (Article 296 TC RF).
In case of bankruptcy of an organization of employees, the bankruptcy trustee informs about the upcoming dismissal no later than one month from the date of the introduction of bankruptcy proceedings (clause 2, article 129 of the Federal Law of October 26, 2002 No. 127-FZ “On insolvency (bankruptcy)”).
The employer, with the written consent of the employee, has the right to terminate the employment contract before the expiration of a two-month period, paying additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal (Article 180 of the Labor Code of the Russian Federation).
The requirements for the execution of an employee notification are not established by law, therefore the document is drawn up in an arbitrary form. One copy is handed over to the released employee, the other, on which the employee signed and indicated the date of familiarization, remains in the organization.
If the employee for some reason does not want to sign the notice of the upcoming dismissal, then the employer draws up an appropriate act signed by several witnesses, which records the fact of the notification and its date.
An act on the employee's refusal to sign a notice of impending dismissal in connection with the liquidation of the organization and receive it in his hands is drawn up in any form signed by an authorized representative of the employer (usually a personnel officer) in the presence of at least two witnesses. Witnesses can be any employees of the organization or representatives of the established liquidation commission. In this case, the two-month notice period for the employee will be counted from the day following the day the act was drawn up.
Please note: an employee who is on a business trip must be recalled from a business trip and handed a notice against signature. You can dismiss him no earlier than two months from the date of delivery of the notice.
Order of dismissal and registration of work books
Orders on forms No. T-8 or T-8a on termination of employment contracts4 are issued after two months from the date of delivery of notifications to employees or ahead of schedule with the written consent of the employee. If an act was drawn up on the employee’s refusal to sign a notice of impending dismissal in connection with the liquidation of the organization and receive it in his hands, then the dismissal order is issued after two months from the day following the day the act was drawn up.
Each dismissed employee should be familiarized with the order against signature (Article 84.1 of the Labor Code of the Russian Federation). If it is impossible or refusing to familiarize, the order makes a mark “Refused to familiarize” or “It is impossible to familiarize with a signature”.
After familiarizing the employees with the dismissal orders, an entry is made in the work books about the termination of the employment contract.
An entry on the basis and reason for termination of the employment contract is made in strict accordance with the wording of the Labor Code or other federal law with reference to the relevant article, part of the article, paragraph of the article. The basis is article 84.1 of the Labor Code of the Russian Federation.
On the day of dismissal (the last day of work), in accordance with the rules provided for in Article 140 of the Labor Code, the employee is paid all compensation established by law and a completed work book is issued in his hands.
Payments to employees upon liquidation of the organization
Upon termination of the employment contract in connection with the liquidation of the organization, the employer is obliged to pay the employee:
wages for the actual hours worked in the month of dismissal;
compensation for all unused vacations (both basic and additional) for all previous years without limitation (127 of the Labor Code of the Russian Federation);
additional compensation for early termination of the employment contract (before the expiration of two months). Compensation is determined in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal (Article 180 of the Labor Code of the Russian Federation);
severance pay in the amount of the average monthly salary (Article 178 of the Labor Code of the Russian Federation). From the norms of Article 287 of the Labor Code of the Russian Federation, it follows that part-time workers are paid severance pay on a general basis;
average earnings for the period of employment, but not more than two months from the date of dismissal (including the paid severance pay);
average earnings for the third month from the date of dismissal, if the employee submits a certificate from the employment authority (Article 178 of the Labor Code of the Russian Federation). A certificate is issued if the employee applied to this body within two weeks after the dismissal and was not employed by him.
Recall that upon dismissal of an employee who has concluded an employment contract for a period of up to two months, severance pay in the amount of the average monthly earnings is not paid (Article 292 of the Labor Code of the Russian Federation). And if, in connection with the liquidation of the organization, a seasonal worker is fired, he needs to pay a severance pay in the amount of two weeks of average earnings (Article 296 of the Labor Code of the Russian Federation).
note
Payments to pensioners upon liquidation of the organization
Upon termination of the employment contract in connection with the liquidation of the organization, the employer is obliged to pay the dismissed employee the average monthly salary for the third month from the date of dismissal, upon presentation of the work book and the decision of the public employment service. The decision is issued if the former employee was registered with this body within two weeks after the dismissal and was not employed by him (Article 178 of the Labor Code of the Russian Federation).
At the same time, according to Law No. 1032-1, citizens who are assigned an old-age labor pension or part of an old-age labor pension are not recognized as unemployed (clause 3, article 3 of Law No. 1032-1). Consequently, pensioners working at the liquidated enterprise cannot be registered as unemployed, since they are already socially protected by the state through the appointment of a pension. Thus, the employment service should not issue a decision on maintaining the average earnings for the third month from the date of dismissal to pensioners. Judges also adhere to a similar position (see the decisions of the Federal Antimonopoly Service of the Central District of 04/02/2007 in case No. A54-2967/2006 and of 03.16.2004 in case No. A23-2779/03A-15-259).
Despite the established jurisprudence and the direct provision of Law No. 1032-1, the letter of Rostrud dated 10.27.2005 No. 1754-61 clarified the following. The employment service authorities do not have sufficient grounds to make decisions in relation to pensioners to refuse to keep them within the third month from the date of dismissal of the average monthly salary in the manner prescribed by Article 178 of the Labor Code of the Russian Federation, and issue the relevant documents (certificates) to pensioners.
Therefore, the employer organization is obliged to pay the dismissed pensioner the average earnings for the period of employment, if the relevant documents are available.
Compensation in the amount of average earnings for the period of employment is not paid to employees who have concluded an employment contract for a period of up to two months, seasonal workers, as well as external part-time workers (after all, they have a main place of work).
The employer is obliged to keep the average earnings for the part-time job for the entire period of employment, if he submits a work book with a record confirming the absence of the main job.
Compensation for unused holidays
In addition to wages for the time actually worked in the month of dismissal, the employee, regardless of whether he has the right to leave or not, is paid monetary compensation for all unused holidays (Article 127 of the Labor Code of the Russian Federation)5.
The amount of said compensation is calculated as follows. The calculated average daily earnings are multiplied by the number of calendar days of unused vacation payable.
When determining the number of days of payment for unused vacation, one should be guided by the Labor Code and the Rules on regular and additional vacations approved by the USSR Tax Code of April 30, 1930 No. 169 (hereinafter referred to as the Rules), applied to the extent that does not contradict the current labor legislation (Article 423 of the Labor Code of the Russian Federation ).
As you know, the duration of annual paid leave is 28 calendar days (Article 115 of the Labor Code of the Russian Federation). Accordingly, if an employee has worked the full working year, the employer pays him compensation for 28 calendar days, that is, for each of the 12 calendar months of the working year, there are 2.33 calendar days of vacation (28 days? 12 months).
In the event that the working year is not fully worked out, vacation days for which compensation is paid are calculated in proportion to the months worked. Moreover, the length of service giving the right to compensation upon dismissal does not include the periods listed in Article 121 of the Labor Code of the Russian Federation. In addition, surpluses that make up less than half a month are excluded from the calculation of the length of service, and surpluses that make up half a month or more are rounded up to a full month (paragraph 35 of the Rules).
Such clarifications are given in the letter of Rostrud dated June 23, 2006 No. 944-6.
Please note: full compensation for unused vacation during the liquidation of the organization (for 28 calendar days) is paid to employees who have worked in the working year for at least five and a half months (included in the length of service), provided that they did not use the right to leave (p 28 Rules).
The organization may decide to round off the number of calendar days of payment of compensation for unused vacation. At the same time, rounding is carried out not according to the rules of arithmetic, but in favor of the employee (letter of the Ministry of Health and Social Development of Russia dated December 7, 2005 No. 4334-17). For example, an employee is entitled to compensation for 2.33 calendar days of vacation, then this number of days of vacation payable is rounded up to three days.
The average daily wage is calculated in accordance with Article 139 of the Labor Code of the Russian Federation and with the Regulation on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922 (hereinafter referred to as the Regulation).

The liquidation of an organization is a complex procedure, as a result of which the head of the company applies to the tax service, providing the necessary list of documents to exclude the enterprise from the state register, which keeps records of legal entities and individual entrepreneurs. This procedure implies the termination of labor relations with all employees involved in the enterprise. The employer is obliged to take into account all articles of the Labor Code of the Russian Federation governing dismissal in connection with the liquidation of the organization, since their violation may lead to the application of penalties.

The legislative framework

The procedure for terminating an employment relationship is regulated 13 Head of the Labor Code of Russia. When dismissing employees, the head of the organization must strictly comply with all the norms provided for at the legislative level. So the process of termination of cooperation in connection with the liquidation of the enterprise is regulated by the following articles of the Labor Code of the Russian Federation:

• - indicates general cases, as well as reasons why an employer can dismiss his employees;
• - regulates the termination of labor relations at the initiative of the director of the organization. In the context of this article, dismissal is also provided in connection with the termination of the activities of a legal entity or individual entrepreneur;
• - indicates the need to provide the dismissed employee with monetary compensation for the leave that they had not previously used;
• - obliges the employer to provide all dismissed employees with severance pay;
• – provides a number of guarantees for dismissed employees, which are binding.

Most often, in practice, the company ceases its activities by decision of creditors or government agencies. At the same time, the head of the organization is obliged to fully comply with all the rules of dismissal provided for at the legislative level.

It is important to know! The current legislation singles out a number of citizens who are under special protection of the state and cannot be dismissed under normal conditions. These include mothers raising children alone and pregnant employees. If the organization is being liquidated, then the ban on the dismissal of protected categories of employees is lifted. In this connection, pregnant women, workers on sick leave, single mothers can be dismissed (at the initiative of the employer).

Dismissal procedure

Termination of labor relations with employees in connection with the liquidation of an enterprise is a complex procedure that requires strict compliance with all the norms provided for by the current legislation. If they are ignored, the employer may be held liable, followed by a fine. To prevent the occurrence of negative consequences, it is recommended to act by adhering to the following algorithm:

• the head of the organization, individual entrepreneur, creditor or government agency decides to terminate the activities of the company. This decision is not a full-fledged basis for terminating employment relations with employees, but allows you to start the dismissal procedure;
• the director of the organization sends a notice to employees about the upcoming dismissal due to the closure of the organization. It must be provided to all employees at least 2 months before the actual dismissal;

It is important to know! Employee notification is mandatory. If for some reason the document did not reach the employee or the director of the company ignored this requirement, but the termination of cooperation may be declared invalid in court. If the employee refuses to get acquainted with the document, the employer is obliged, in the presence of several witnesses, to read out its contents and draw up an act of refusal, which will act as evidence in court proceedings.

• after a two-month period, the head of the company is obliged to order the issuance of a dismissal order, which is drawn up in the form T-8a (in case of mass dismissal). Each dismissed employee must be familiarized with this document against signature. In case of refusal, an appropriate act is drawn up;

• on the last day, the employee is given funds, including those provided for upon dismissal due to the closure of the company, and all documents are issued, including a completed work book.

It is important to know! The director of the organization may dismiss the employee ahead of time established at the legislative level. To do this, you must obtain the consent of the employee, drawn up in writing.

Responsibility for illegal dismissal

If, during the dismissal procedure, the employer ignored the requirements of the Labor Code of Russia, then he can be held liable in court. Violations of the current legislation include:

• ignoring the minimum terms for notifying an employee;
• violation of the terms of payment of funds and the issuance of documents;
• the presence of errors in the documents, the completion of which is mandatory upon dismissal;
• delay in the issuance of a work book or the presence of errors in the entry made
• fictitious liquidation of the organization.

In order to challenge the dismissal, the employee must file an appropriate application with the court, observing the limitation period, which is 1 month from the date of termination of the employment relationship. This period can be restored if it was missed for a good reason, which needs to be proven. By decision of the court, the employer may be required to pay the employee monetary compensation, the amount of which is established on an individual basis.

If the organization terminates its activities, then the head of the company is obliged to carry out the procedure for terminating labor relations with all employees. It requires full compliance with current legislation, since otherwise the employee will be able to challenge the dismissal in court and seek compensation.

Market relations and crisis moments in the development of the economy often become the reason for the liquidation of a business.

The organization ceases its activities - this serves as the basis for the termination of employment contracts with the entire staff of employees. The legislation regulates the issue of liquidation of the organization and the procedure for dismissal of employees, as well as ensuring and observing their rights. The grounds for termination of the contract during the liquidation of the organization are prescribed in the Labor Code of the Russian Federation - Art. 77, part 1 point 4, with reference to art. 81 part 1 point 1.

The procedure for the dismissal of employees during the liquidation of the organization

Dismissal upon termination of activity by the company should not be news to employees, they must be notified of this at least 2 months before the date of dismissal. Employees are notified each personally in writing and against signature. In case of refusal to sign the document, an act is drawn up. Those who are sick or absent from work are notified by registered mail with acknowledgment of receipt. The term, in this case, is considered from the moment the employee receives the letter.

• Seasonal workers - 7 days,
• Working under a fixed-term contract for less than two months - in 3 days.

The notification must be sent to the Employment Center on the release of workers. Lists of surnames indicating positions are submitted. The presence of a trade union body in the organization obliges the employer to notify him three months before the dismissal of people.

You can quit without working out for two months, after the employer has notified about the closure of the organization. The period remaining until the expiration of two months from the date of the warning is paid at the rate of average earnings. Dismissal is made upon a written application in accordance with Art. 180 h. 3 of the Labor Code of the Russian Federation.

Additional Information

The head of the enterprise is obliged to take a number of actions: 1) notify all necessary authorities three months before the start of liquidation 2) inform the employment service about the scheduled closure and dismissal of employees several months in advance 3) submit to the Employment Center a form indicating the number of employees to be laid off within ten days.

The order to terminate the contract is issued on the day of dismissal of employees after two months from the date of warning about the liquidation of the organization and the dismissal of employees. Employees get acquainted with the content of the order and put their signature. Settlement with the dismissed is made on the date of termination of the contract. Issued on hand Employment book and certificates of average earnings.

Retirement payouts

Guarantees in the event of termination of an employment contract due to the closure of the employer's enterprise consist in the payment of benefits equal to the average earnings of the employee for three months from the date of dismissal. The allowance for the first month is issued to the employee after dismissal. If the dismissed employee did not find a job, the allowance is paid for the second month.

The employee was given a two-week period to register with the employment center as unemployed. If he does not find a new job with the help of the employment service within three months, then he is entitled to compensation in the amount of the average wage for all three months, this right is guaranteed by Art. 178 of the Labor Code of the Russian Federation, part 1.

Payments upon dismissal in connection with the liquidation of the organization:

• Salary balances not paid by the employer at the time of termination of the contract,
• Payment of vacation pay for the prescribed days of annual leave,
• Payment in the amount of the average monthly salary,
• Other payments provided for by local acts of the organization.

In case of early dismissal, at the request of the employee, all due payments are preserved. Benefit is not accrued if the dismissed person has found a new job.

1. Seasonal workers, accepted for a certain period, are entitled to payment for two working weeks, Art. 296 part 3 of the Labor Code of the Russian Federation.
2. No compensation is paid to workers under a fixed-term contract for less than two months.

If the organization is closed due to bankruptcy, then according to Article 129 of Federal Law No. 127 (dated October 26, 2002), the current dismissal due to the liquidation of the enterprise must be reported one month in advance. 2 paragraph 84.1 of the article of the Labor Code of the Russian Federation states that employees must be aware of the order to dismiss, where they must put the appropriate signature.

Procedure for the liquidation of an organization

The liquidation of an enterprise involves the complete cessation of activities. The procedure for closing an organization takes place in several stages:

1. Making a decision and notifying the tax authority at the place of registration of the company.
2. The order appoints a liquidation commission, which takes the necessary measures for the sale of property and settlements under contracts.
3. An announcement is made to the media that the firm is closing.
4. An accounting report is drawn up with a list of all material assets and amounts owed to creditors and counterparties.
5. Debt settlement.
6. Drawing up a balance sheet after paying off debts, distributing the balance of property between the owners of the company.
7. The Federal Tax Service Inspectorate enters information into the Unified State Register of Legal Entities on the termination of the enterprise's activities.

Features of the dismissal of employees during the liquidation of the company, see the video

Employees who are entitled to payments upon liquidation of the company

Employment contracts are subject to termination with absolutely all employees without exception. Accordingly, every employee is entitled to compensation payments.

1. Pensioners. The right to payments is retained in full.
2. Part-time workers are entitled to compensation only in the amount of the average monthly earnings.
3. Employees on sick leave and vacations receive all payments due.
4. Women who are on maternity leave, upon dismissal due to the liquidation of the enterprise, are paid sick leave, child care allowance for up to one and a half years is paid at the expense of the Social Insurance Fund.

All questions of interest can be asked in the comments to the article.