Money

How to calculate additional compensation for early redundancy. Early dismissal due to reduction

Early dismissal in case of staff reduction is carried out according to the standard version of this type of dismissal. There are also a number of nuances that are regulated by legislative acts. Payments and settlements have a number of differences from the standard reduction procedure, in the form of additional amounts and compensation.

basic information

Early dismissal can only be voluntary and agreed upon. It is worth considering that dismissal can be made at the initiative of the employer, if he is interested in prompt staff reduction. Such a procedure will require the written consent of the employee, who has previously been notified that the period for working out before reduction is two months from specified date. If a early option is initiated by the employee, then a number of conditions will need to be met:

fill out an application in a special form;
the application must be agreed with the head and signed by the latter;
then comes the reduction procedure with payments and settlement, which are indicated in the issued order on the early termination of labor relations;
the employee receives the calculation and all documents, including labor, which indicates the basis in the form of early reduction.

Further, everything depends on the individual order of employment, since former employee must join the labor exchange and not be employed in order to receive an additional payment in the form of severance pay. The term for paying severance pay is maximum three months.

A number of nuances:

in case of early termination of the contract, there is a voluntary agreement, it is for this reason that the employer must obtain written consent, and the employee needs a signature on the application, which the manager may not sign if he is not satisfied with the earlier departure on time;
all employees who go under the layoff must be notified of this 2 months in advance. Upon notification, each employee must sign. From this date there is a countdown of two months that will need to be worked out;
a number of categories of employees preferential condition employment, which does not allow them to be reduced in the first place. For example, this rule applies to pregnant women and other privileged categories. In this case, they are offered an equivalent position, instead of the one that will be reduced in the staffing table;
if early care is own will or by agreement with the employer, then the payments are established precisely on the indicated grounds, that is, at their own will, payments for the reduction will not be paid, and the agreement establishes its own conditions, including regarding payments and the term of dismissal;
article 180 regulates early dismissal during reduction, that is, it is the basis;
in case of early retirement, it is prescribed p. 2 h. 1 art. 81 of the Labor Code of the Russian Federation. This means that the employee is assigned all the payments required for the reduction.

Important! The employer does not have the right to seek care from the employee at his own request or with infringement of his rights. If this happens, the employee has the right to file an application with the court, which will entail bringing the organization's management to responsibility, as well as a number of inspections by the labor inspectorate.

The reduction procedure has its own structure, which must be observed.

Procedure

The procedure for early reduction has its own differences from standard order. Step by step:

creating a list of layoffs and notifying all employees in positions being removed;
after familiarization, the employee can write an application for early reduction;
the initiative of the employer must be confirmed by the written consent of each employee who will be voluntarily reduced ahead of schedule;
an individual order is issued for an employee or a general one, if there are several persons to be reduced;

according to the order, the calculation is made and all due payments are made;
almost all basic and additional amounts are paid on the last business day in conjunction with the issuance of a documentation package and labor;

An employee can request additional compensation only if he is at the labor exchange and there is no actual employment. It should be noted that after the reduction maximum time additional payments limited to three months.

Important! In case of early dismissal, the employee receives not only the payments due upon reduction, but also additional compensation, which is calculated on special conditions on an individual basis. It takes into account unworked days until the end of the reduction period.

Wednesday important points the main thing is that the protected categories of workers (categories of beneficiaries) have additional rights and, if the staff is reduced, they are transferred to another position. Also, there are often cases when the transfer is not possible due to the employee's disagreement to reduce his position. This applies to women in maternity leave. For this reason, not a reduction should be made, but a transfer to those conditions that the employee agrees to.

Among the frequent nuances in the form of additional payments is their size, as well as the availability of additional compensations, which depend on working conditions, as well as on the type of employment contract. Individuals with enhanced benefits, including employees government agencies and structures, additionally receive a number of payments, which are added to the main ones. Also, some categories of employees, for example, seasonal workers, have a lower severance pay rate in the form of 0.5 of the usual amount.

All payments that are regulated by law for a certain category of workers must be made in a timely manner. There is no difference between payments for the usual reduction and early reduction, with the exception of the presence of additional compensation for the unworked period of time in the latter option.

If necessary, you can apply for early dismissal to reduce staff. This will require the consent of the employer or employee, depending on the initiator. All payments due under the usual reduction are retained by the employee, but this will require the use of the correct basis.

Labor legislation allows the dismissal of the reduced employee earlier than the two-month period established for warning about such dismissal. In case of such early dismissal, the employee must make the same payments that would be due to him upon dismissal due to staff reduction on time, as well as pay additional compensation.

Early dismissal due to reduction

This possibility is provided for by Part 3 of Art. 180 of the Labor Code of the Russian Federation.

The conditions for early termination are:

the written consent of the employee to the employer's proposal to dismiss before the deadline specified in the notice of dismissal issued to the employee for reduction;
payment to the employee of additional compensation (in fact, payment in the amount of the average earnings of the time remaining until the date of dismissal - usually about two months).

Since the grounds for dismissal indicated in the order and work book will be clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, the employee is entitled to all the guarantees and benefits established by law for laid-off employees.

Arranging for early layoffs

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

Early redundant employees also receive additional compensation in the amount of their average earnings, calculated in proportion to the time until the end of the notice of dismissal.

A worker who is laid off ahead of schedule can claim a maximum of five of his average earnings (“northerner” - up to eight).

It is necessary to pay all the amounts due to the employee (except for the saved earnings for the 2nd and 3rd months of unemployment) on the day of dismissal - Art. 140 of the Labor Code of the Russian Federation.

It turns out that on the day of dismissal in case of early reduction, he must be paid:

salary for the time of work preceding the dismissal (including compensatory and incentive payments);
compensation for previously unused vacations (Article 127 of the Labor Code of the Russian Federation);
severance pay in the amount of average monthly earnings (Article 178 of the Labor Code of the Russian Federation) or in an increased amount, if it is established in the organization;
additional compensation.

How to correctly calculate additional compensation for early redundancy?

The average monthly earnings of an employee, used, among other things, to calculate additional compensation, include all payments provided for by the current remuneration system in the organization (Article 139 of the Labor Code of the Russian Federation and the Regulation on the peculiarities of the procedure for calculating the average wages, approved Decree of the Government of December 24, 2007 N 922 (hereinafter - Regulation No. 922)).

Consider an example of calculating such compensation.

The employee was notified on 08/31/2017 of the upcoming dismissal for reduction with the expiration of a 2-month period on 10/31/2017. With his written consent, the employment contract was terminated ahead of schedule on September 15, 2017. The salary of this worker is 50 thousand rubles. per month. How to calculate the amount of additional compensation for early dismissal if the billing period is fully worked out?

Additional compensation for early dismissal is paid to a reduced employee for the period from 09/16/2017 to 10/31/2017. In this period, according to the production calendar of 2017, there are 32 working days.

Clause 9 of Regulation N 922 prescribes the use of medium in the cases provided for by the Labor Code of the Russian Federation daily wage in determining average earnings. The average earnings are found by multiplying the average daily earnings by the number of days in the payable period.

In our situation, the average daily earnings are found by dividing the amount of wages actually accrued for the days worked in the billing period (including bonuses and remuneration in accordance with clause 15 of Regulation N 922) by the number of days actually worked in this period.

The billing period is 248 business days.

Average daily earnings - 2419.35 rubles. ((50,000 rubles x 12 months) / 248 working days).

The amount of additional compensation for early dismissal is 77,419.35 rubles. (2419.35 rubles x 32 working days).

, rupture of working relations can occur ahead of schedule with a reduction in the number of staff. The regulatory provisions of this article allow the employer:

According to Article 180 Labor Code, each employee subject to redundancy must receive notice of the redundancy in writing. After that, he begins to look for a new job, while continuing to fulfill his duties at the workplace.

affect the gap labor agreement and downsizing can be the following reasons:

a new place of work and a desire to immediately begin to fulfill their duties;
retirement.

What benefits can an employee who leaves the state prematurely expect?

The employee has the right to demand early termination of the employment contract referring to Art. 180 TC.

Thus, he retains the right to additional monetary compensation. Its size is equal to the amount of monthly income, and the right to receive a second monthly salary is retained if the employee has not found a new job within the second month after dismissal.

In addition, the employee retains the right to receive a third severance pay if, 2 weeks after dismissal, he is registered at the labor exchange.

In addition to severance pay, a retired employee for all unused vacation days should receive monetary compensation. The employee can receive all payments on the next day, when the organization provides for the payment of salaries.

Now you can summarize and identify all the cash payments that a person who quits prematurely with a reduction in staff can receive:

salary for the days worked in the month when the employment agreement was terminated;
monetary compensation for untaken vacation days;
remuneration that corresponds to the size of the employee's salary on average;
exit allowance, the amount of which is identical to the average earnings of an individual;
average earnings for 2 months, the countdown starts from the moment of leaving work.

Procedure

Applying

An employee who wishes to cancel an employment contract on his own initiative must know all the intricacies of the correct writing of the application. It is on this that the guarantee of the success of the subsequent dismissal process and the receipt of benefits depends.

The wording of the statement is clear, no double meaning. You need to write that the dismissal occurs due to staff reduction, and not at personal discretion. The fact is that when calculating dismissal payments, you have to refer to different articles.

In the application, the employee is obliged to state that he knows about his reduction, write the date of this deadline, list all the offered vacancies to him, if this was the case. When writing a statement, you need to emphasize that the employee wants to terminate the employment agreement before the time for reduction comes.

It is important to indicate that he expects to receive payments due to him by law in the current situation.

The application must contain the following information:

name of the employer;
Full name and position of the worker who was laid off;
the text of the application (meaning - permission to terminate the employment agreement ahead of schedule);
basis - part 3 of Art. 180 of the Labor Code of the Russian Federation;
date of signing the application;
employee's signature.

It is possible to write an application for dismissal to reduce staff ahead of schedule only after the order for the enterprise has been officially published, and the employee has signed a notice indicating the deadlines.

Making an order before the expiration of the notice period

When the head of the organization is not against the dismissal of an employee, then before the end of the warning period, he must issue an appropriate order. Documentation takes place in the first person and contains the following information:

The order to dismiss when reducing the headquarters without the need to work out 2 months, the boss must provide the resigning employee with a personal signature, and then it is registered in the journal of orders.

Important! To prevent various misunderstandings, you need to make sure. To do this, the employer and the employee leaving the organization will have to draw up an agreement in two copies.

The application must contain all the payments claimed by the former employee, and the dates when he will receive them.

After that, the employee can safely go to the accounting department and collect the necessary remuneration, without fear that he will be fired at his own discretion.

What is included in the work book?

After the dismissal of an employee, a corresponding entry should appear in his work book under the date indicated in the order of dismissal.

In the work book, in the line “Grounds for termination of the employment contract (dismissal)” there will be the following entry: “In connection with the reduction in the staff of the organization’s employees, clause 2, part 1, article 81 of the Labor Code of the Russian Federation”.

What to do if the employer does not release?

Does an employer have the right not to agree to release an employee ahead of schedule? No, he has no such right. The employee simply does not go to work on the 15th day, and in court he has the right to demand payment of the average wage for the time of forced absenteeism. At the same time, he must have confirmation in his hands that the letter of resignation was accepted by the boss.

Besides, The rights of the worker on the part of the boss may be violated if:

The firm did not receive an agreement to implement early termination.
All payments stipulated by law were not implemented in full. This should include: cash payments for not taken vacation.
The procedure was implemented with inconsistencies (for example, the labor exchange was not notified properly).
The dismissal of the employee was carried out later than 2 months before the immediate dismissal.
The boss morally puts pressure on the employee so that he writes a letter of resignation "of his own free will" so as not to pay him the due compensation.

To prove their rights, the employee must contact an experienced lawyer who will tell you how to draw up a statement of claim for litigation in order to protect the principal.

The filing of a statement of claim is carried out in a court of general jurisdiction in the number of copies, according to the number of participants in the process. The claim must contain the following elements:

You can appeal a dismissal that is not carried out according to the law within 30 days. During the trial, the judge makes a decision, the effective part of which will display:

oblige the company to make changes to the record that is noted in the labor;
collect payments and compensation from the organization;
moral damage caused by illegal actions.

Getting laid off from work is a rather unpleasant moment in life. But you can benefit from this if the employee quits ahead of schedule on his own initiative, that is, at his own request. Then he can at least qualify for cash payments. But it does not always go smoothly, sometimes an innocent application for early dismissal leads to a trial, which takes a lot of time and effort.

Under certain conditions, you can apply for early dismissal by reduction. Consider how to do it correctly in order to avoid litigation.

Staff reduction remains the most popular cost optimization measure among employers. By general rule, about the upcoming dismissal on this basis, employees are warned personally and against signature at least two months in advance (clause 2, part one, article 81, part two, article 180 of the Labor Code of the Russian Federation).

Under what conditions can early dismissal

In the text of the notice of dismissal or in another document, the employer has the right to offer the employee to terminate the employment contract before the two-month notice period expires (part three of article 180 of the Labor Code of the Russian Federation). Early dismissal is possible if two conditions are met:

reduction is carried out in accordance with the procedure established by law;
the employee agreed to leave early with the payment of additional compensation.

The legality of the reduction. The Labor Code regulates in detail how to carry out the reduction. So, the decision to reduce the staff must be notified to the employment service and the trade union (if any) no later than two months, and if mass layoffs are planned, no later than three months before the start of termination of employment contracts (part one of article 82 of the Labor Code of the Russian Federation, Article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1, ruling of the Constitutional Court of the Russian Federation of January 15, 2008 No. 201-O-P).

It is necessary to take into account the preferential right of employees to stay at work, to offer vacancies to those who are laid off (part three, article 81, article 179, part one, article 180 of the Labor Code of the Russian Federation).

Employee consent. The employee must give written consent to early dismissal. This may be an inscription on the notice or a separate document. To prevent the employee from making mistakes, offer to write a statement, indicating in it the reason for dismissal, the details of the notice of reduction and the date on which he agrees to leave early (sample below).

Consent to early termination

If the employee does not indicate the date or reason for dismissal in the application, the court has the right to recognize the termination of the employment contract as illegal (appellate ruling of the Moscow City Court dated June 2, 2016 in case No. 33-14856 / 2016).

The law does not prohibit an employee from withdrawing consent to early dismissal. However, the employer is not obliged to follow his lead. The revocation of consent does not have significant significance, since the employee is dismissed to reduce staff, and not of their own free will.

Therefore, the employer has the right not to take into account the change in the position of the employee and dismiss him on the agreed date. This confirms and arbitrage practice(determination of the Moscow City Court of May 26, 2011 in case No. 33-15827).

Sometimes the employee himself demands that he be fired ahead of schedule. If we interpret the Labor Code literally, the employer is not obliged to do this (part three of article 180 of the Labor Code of the Russian Federation). Until the notice period for the reduction has expired, the employee has the right to quit at his own request (clause 3 of the first article 77 of the Labor Code of the Russian Federation). But then he will lose the right to severance pay and average earnings for the period of employment (Articles 178, 180 of the Labor Code of the Russian Federation).

Thus, this situation will inevitably lead to conflict and litigation. Therefore, we recommend that you agree to early dismissal of the redundant employee in the case when such an initiative comes from him.

How to issue a dismissal order

The dismissal order is drawn up in a unified form No. T-8 or another developed by the organization (sample below). Labor contract terminated under paragraph 2 of the first part of Article 81 of the Labor Code. As documents - the grounds indicate a notice of the upcoming dismissal to reduce staff, a written consent (statement) of the employee for early dismissal.

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What payments are due to an employee in case of early reduction

On the day of dismissal, the employee is paid the final settlement (Article 84.1, 140 of the Labor Code of the Russian Federation). It includes salary, compensation for unused vacation, severance pay in the amount of the average monthly earnings.

The reduced employee retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay). In exceptional cases, the average monthly salary is maintained for the third month from the date of dismissal.

The decision on this is made by the employment service. In practice, the question arises, from what date, in case of early reduction, to calculate the period of employment, for which the employee is entitled to the average monthly salary. After all, the date of dismissal is different from that indicated in the notice. As follows from the Labor Code, this period is calculated from the actual day of dismissal, and not from the date specified in the notice (Article 178 of the Labor Code of the Russian Federation).

In addition to the above payments in case of early dismissal, the employee is entitled to additional compensation. It is calculated from the average earnings in proportion to the time remaining until the end of the termination notice period (formula below). To calculate the average daily earnings, apply the procedure established by the Decree of the Government of the Russian Federation of December 24, 2007 No. 922.

Example:

On September 14, 2016, accountant Olga M. was handed a notice of dismissal due to staff reduction on November 15, 2016. The employee agreed to early dismissal on October 3, 2016. The average daily wage is 1138 rubles. Olga works on a five-day calendar working week. Thus, additional compensation must be calculated within 30 working days.

The amount of compensation will be 34,140 rubles. (1138 rubles × 30 days).

If the employer does not pay additional compensation, this will not affect the legality of the dismissal. However, the dismissed employee will be able to recover the amount of compensation through the court (appeal ruling of the Moscow City Court dated October 6, 2015 in case No. 33-36827 / 2015).

How to make an entry in the work book and personal card

The work book is filled out in accordance with the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 and the Instruction approved by Decree of the Ministry of Labor of Russia of October 10, 2003 No. 69.

The entry in the workbook of an employee dismissed early due to a reduction in staff will not differ from the entries in the workbooks of employees dismissed for the same reason within the period specified in the notice (sample below).

Sample work book

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An entry in the employee's personal card will also be standard (sample below). AT work book and personal card do not enter information that the dismissal was early.

Entry on a personal card

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Labor legislation gives him the right to take the initiative in this case. One of the manifestations of this initiative is that an employee who falls under the reduction will not be able to leave work ahead of schedule without the consent of the immediate head of the organization or enterprise.

And the employee's reasons can be quite valid. For example, he found a new workplace and wishes to take up his duties immediately. To obtain management consent to early termination labor contract, the employee must write and submit an application.

At the same time, the presence of such a document does not guarantee that the employee will receive the desired. Legislation gives the right to early care in accordance with federal law 197, however, does not impose such a duty on employers. That is, the decision in this case will depend on the good will of the leadership.

The basis for early termination of the employment contract is an application submitted by the employee.

In this document, he asks management to allow the settlement at his request, referring to the main reason for submitting the document, that is, to the upcoming and change in staff a lot of schedule.

According to Article 180 of the Labor Code, the consent of the employee, recorded in the application, just gives the manager the right to issue an early dismissal. Without such consent, the employer is not entitled to terminate the employment contract. This will violate the general reduction procedure provided for by law.

There is no unified form () for drawing up an application by law. For this reason, the employee draws up a petition at his own discretion. However, the receipt of an early settlement will depend on the correctness of all the wording. Therefore, the following items are included in the document:

At the top, the name of the document is indicated and an appeal is made to the head of the organization or enterprise (name legal entity fit in completely).
Below is a request to allow early termination of the employment contract in connection with the upcoming reduction of the workforce (the number and date of the notification received from the employer are indicated).
Be sure to enter information that they were, but the employee refused them. It is also recorded that the employee, despite the early settlement, claims all the payments required by law (this is a very important point that allows you to avoid discrepancies in the document!).
Next, enter the desired date for terminating the employment contract.
The document is signed with the decoding of the name and patronymic. The date of its compilation is indicated below.

It must be understood that for certain categories workers such care is not of particular value. The standard reduction procedure involves mailing to dismissed employees two months before the planned termination of employment contracts.

Fixed-term contracts require the employer to send notices a week before the planned dismissal. If the contract is for seasonal work or has a short period of validity (two to three months), a notice will be sent three days in advance. Obviously, early settlement with such short term the employee is unlikely to need to wait for the termination of the employment contract and the final payment.

It is also necessary to understand that in most cases the employer is interested in the early departure of the employee. Despite the obligations for additional compensation for early calculation, the employer will be able to avoid problems with jobs. After all, the reduction of a staff unit implies the cancellation of a certain position or the transfer of part of its functions to other employees (structural divisions).

Due to the lack of the necessary position (job), it will be easier for the employer to say goodbye to the employee ahead of schedule than to pay him another two months before the day of dismissal announced in the notice.

Early termination procedure

The reduction of the working staff is carried out taking into account several articles of the Labor Code at once.

Most of the procedure for early departure of an employee is not much different from the standard termination of the contract. The employer takes the following actions:

Issued, fixing the order to begin the procedure for reducing staff units. That is, change staffing, from which certain positions (jobs) will be withdrawn as a result.
The personnel department that received this order is compiling a list of positions and employees subject to reduction (according to Article 179 of the Labor Code).
After that, the employees who are on the list are notified in writing.
The notifications prepared by personnel officers are signed by the head of the organization or enterprise, and then transferred to the laid-off employees for review.
Upon receipt of such notice, the employee must sign it. Refusal to sign the situation will not change, since in fact the position of this employee has already been excluded from the staff list, and the upcoming dismissal is considered a legal fact.
But, nevertheless, the refusal is recorded by a separate act, which is then attached to the employee's personal file.
After signing or not signing the notice, the employer talks to the dismissed employees, offering them a choice of various vacant positions.
It should be noted that those related to preferential categories (for example, pregnant employees).
At this stage, the employee who decides to leave in advance draws up an application and submits it to the manager. The document undergoes mandatory registration in the accounting book, it is performed by the secretary or other responsible person. After that, the application falls on the table to the head.
Having considered the request of the employee, the employer satisfies it or refuses to satisfy it. After that, a resolution is imposed on the application.
If the decision is positive, a separate order is prepared. On its basis, accounting staff and personnel department perform fundraising.
The accrued are issued to the dismissed employee on the day that he indicated in the application (and then duplicated in the order of the management).

What payments are due?

It is more economical for the employer if the employee leaves. However, if this wording is not indicated in the application written by the employee being terminated, the payments are accrued in full. They are formed:

from the official accrued for the days actually worked in the last working month;
from the compensations laid down by law for more;
from additional compensation payments for all days remaining before the date of dismissal announced in the notice of management (accrued based on average wages);
from the payment of months of involuntary unemployment set aside by law to find a new job (usually it takes one to two months).