Dismissal due to liquidation of the enterprise - This is stress for workers due to loss of earnings. The legislator has provided for them some guarantees and compensation. Meanwhile, unreliable employers, taking advantage of the legal illiteracy of their employees, cover up other types of reform of the company’s activities with liquidation and force them to resign due to at will. We will talk about all aspects of dismissal associated with the liquidation of an enterprise in this article.
What is liquidation of an organization
Liquidation of an organization is complex and quite long procedure, the ultimate goal of which should be to contact the tax service with the necessary package of documents and exclude the enterprise from the unified state register of existing legal entities or individual entrepreneurs.
Liquidation of a company is carried out voluntarily by decision of the founders of a legal entity (IP) or compulsorily by a court decision.
In case of voluntary liquidation of an enterprise, a brief scheme of measures looks like this:
It becomes clear that after completion of all stages of liquidation, the enterprise ceases to exist and it does not have any legal successors. However, quite often employers disguise other forms of reorganization of activities as liquidation in order to get rid of unwanted employees for their own benefit.
The difference between the liquidation procedure and other forms of company reorganization
You can often hear from working citizens: “Our store (office, base) is being liquidated because the owner sold it (changed the name, address, director). And we were asked to write a letter of resignation of our own free will.”
Note! Dismissal at will is possible solely at the request of the employee, and not because of some external circumstances or someone else's requests. And in in this case the employer simply does not want to pay his employees upon dismissal.
The liquidation of an enterprise should be distinguished from such changes in the work of the organization as:
- change of company owner or management;
- change of name, address, location;
- reorganization of an enterprise by merging with another legal entity or merging two legal entities.
If the owner of an organization changes, in most cases this does not entail any changes for ordinary employees. The cashier or seller generally does not care who is listed as the founder of their LLC. If the new owner decides to change the organization’s management and personnel, he can carry out a staff reduction procedure, paying employees all the required amounts, or dismiss employees by agreement of the parties, also agreeing on the amount of compensation. Changing the name, address or location of the enterprise will not affect the work of the team at all, except possible change route to work.
In the event of a reorganization, when an organization merges or merges with another, it is obvious that some of the personnel becomes redundant, since there is no need for 2 directors, 2 personnel officers, etc. However, this does not mean that extra people should resign themselves. In this case, dismissal is also carried out as part of the staff reduction procedure or by agreement of the parties with the payment of severance pay.
The procedure for dismissing employees during liquidation of an organization
Dismissal upon liquidation of an enterprise is subject to the algorithm of actions that are prescribed in the Labor Code of the Russian Federation and the Law of the Russian Federation “On Employment in the Russian Federation” dated April 19, 2001 No. 1032-1. In accordance with these legislative acts dismissal due to liquidation of the enterprise takes place in 5 stages:
The Labor Code of the Russian Federation provides for employees the opportunity to terminate an employment contract before 2 months have elapsed before the mass dismissal of employees. The employee’s consent to early dismissal must be in writing, and the company is obliged to compensate him with average earnings for the days remaining before the planned dismissal.
Dismissal due to liquidation of the enterprise dedicated to clause 1 of Art. 81 Labor Code of the Russian Federation. It is this norm that must be recorded in the work book as a basis for terminating the employment contract. However, at the request of employees, another reason may be indicated as a basis for termination of the employment contract:
- transfer to another place of work (clause 5 of article 77 of the Labor Code of the Russian Federation);
- the worker’s own desire (clause 3 of article 77 and article 80 of the Labor Code of the Russian Federation);
- agreement between the employee and the employer (clause 1 of article 77 and article 78 of the Labor Code of the Russian Federation).
In these cases, the company saves on payments to the employee provided for upon dismissal due to liquidation.
Severance pay upon dismissal due to liquidation of the organization
The amount of the benefit designed to compensate for the loss of work is established in Art. 178 Labor Code of the Russian Federation. When resigning due to the cessation of the organization's activities, the employee must receive:
- 1 average monthly salary upon calculation;
- 1 average monthly salary for the period of employment for 2 months
IN exceptional cases by decision of the employment service, a citizen can receive 1 more average salary if he is not employed within 3 months (provided that within 2 weeks after dismissal the employee is registered with the labor exchange).
As a rule, 2 average salaries are paid to employees at the enterprise immediately upon dismissal, but to receive the 3rd payment, you need to contact the employment service.
In addition to dismissal benefits due to liquidation, each employee must receive the usual payments upon termination of an employment contract:
- salary for hours worked;
- compensation for unused days vacations;
- other payments that may be provided for by the internal documents of the organization, for example a collective agreement.
Payments upon liquidation of an enterprise to women on maternity leave and on sick leave
After a company ceases operations, the most questions arise from those who are preparing to go on maternity leave, are on maternity leave, or fall ill after dismissal. Meanwhile, the state provides certain security for these most vulnerable categories of citizens.
In paragraphs 3 and 4 tbsp. 13 Federal Law “On Compulsory Social Insurance...” dated December 29, 2006 No. 255-FZ states that if former employee liquidated enterprise fell ill within a month after dismissal, payment according to sick leave is produced by the Social Insurance Fund, where you need to apply with documents within 6 months (but it’s better not to delay!). The same standards apply to expectant mothers who go on sick leave for pregnancy and childbirth.
As for workers dismissed during maternity leave or parental leave, after dismissal they need to contact the social security authority at their place of residence. You must submit a certificate of salary for the past 12 months to social security. Based on these documents, it will be calculated and paid monthly allowance in the amount of 40% of average earnings, and not the minimum as for the unemployed.
Important! Child care benefits will be paid only to those who have not registered with the employment service and, accordingly, do not receive unemployment benefits.
It is worth keeping in mind that receiving benefits for disability, maternity and child care through government organizations does not exclude or affect the receipt by employees of dismissal payments in connection with the liquidation of the enterprise.
When an entrepreneur, for one reason or another, decides to part with his business, liquidating the company, closing the organization, naturally, he has to say goodbye to hired workers and employees. Liquidation of the company and termination of the employer’s activities is the reason for final settlement with employees. How to competently carry out the dismissal process in connection with such a circumstance is discussed in this article.
The terrible word “liquidation”
When activity legal entity becomes ineffective, loses its expediency, no longer has the right to continue, is carried out liquidation– the process of systematic termination of all affairs and obligations of the employer, as well as the abolition of rights to his property.
During liquidation, the following types of activities of the entrepreneur must be completely stopped:
- production;
- scientific;
- technical;
- trading;
- public;
- credit
After completion of this process, the former legal entity must remain in a state of absence of any rights and obligations to anyone. They can no longer demand repayment of debts, payment of compensation, or documents for verification. All his statements from the moment of liquidation will have no legal significance.
FOR YOUR INFORMATION! Other legal entities do not have the right to inherit the obligations, as well as the rights of the liquidated one (Clause 1, Article 61 of the Civil Code of the Russian Federation).
The liquidation process is considered completed when a record of it appears in the Unified State Register of Legal Entities.
Final settlements with all persons related to the liquidated enterprise must be made before the completion of the process, including the termination of employment contracts with each employee (clause 1 of Article 81 of the Labor Code of the Russian Federation).
"Letters of happiness"
Preparations for liquidation begin 2 months before the start date of the relevant commission. During this period, employees are given written notices that the company will cease to exist in 60 days (the exact date must be indicated), and the employee will be dismissed on this basis. All employees will receive such a written warning, including preferential categories usually having “immunity” to dismissal:
- on leave (regular, maternity or maternity leave);
- employees on sick leave;
- pregnant women;
- mothers of children under 3 years old;
- single mothers in whose care a child under 14 years of age (children with disabilities under 18);
- those who raise motherless children;
- minor workers.
Notice periods are shortened for termination of fixed-term contracts: employees who do not intend to cooperate with the company for more than 2 months are notified at least three days in advance. Seasonal workers must be notified a week in advance (Article 292 of the Labor Code of the Russian Federation).
For each employee, you need to produce 2 documents: on one of them he must leave his visa confirming familiarization, the second is handed over to him.
IMPORTANT INFORMATION! If all employees of an organization with more than 15 people are going to be fired, then the employer is obliged to notify the employment service about this (in writing, also 2 months in advance).
If an employee is on vacation or is sick, this document will be delivered to him by registered mail, notifying the employer that it has been delivered to the addressee. The same can be done if the dismissed person does not want to sign the acquaintance: this will protect against possible challenges to the legality of the dismissal. In this case, it is also legal to draw up an act of refusal to sign (it must be certified by two witnesses).
ATTENTION! The form of notification is not normatively fixed, so it can be arbitrary, the main thing is the presence of the employee’s full name and the date of the upcoming liquidation, also known as the date of dismissal.
After the dismissal of employees, the liquidation commission begins its work.
Leave before it's all over
If the employee who has received the notice desires to leave work early, the employer may accommodate him. With the written consent of the employee, the employer issues an order for early termination labor relations. In this case, it is necessary to calculate and pay additional funds for compensation (it will be part of the average earnings corresponding to the days remaining until liquidation). This procedure is permitted by Article 180 of the Labor Code Russian Federation.
According to another article?
If employees for some reason do not want to connect the end of cooperation with the liquidation of the company, they can choose another basis for this:
- at the request of the employee;
- by agreement of the parties;
- due to a change of job.
YOU SHOULD REMEMBER! All other legal reasons do not give the dismissed person the right to receive severance pay.
Latest payments to the organization
Upon leaving the disappearing organization, the employee receives the usual dismissal payments (salary and compensation for unpaid vacation days), as well as severance pay upon liquidation of the enterprise. You will have to calculate the average amount of earnings per month.
Seasonal workers will receive earnings for 14 days (Part 3 of Article 296 of the Labor Code of the Russian Federation), and upon termination of a fixed-term employment contract, payment of severance pay is not provided (Part 3 of Article 292 of the Labor Code of the Russian Federation).
IMPORTANT! Payment of this benefit will be received both by full-time employees for whom this work is their main job, and by those working part-time.
Support during the search for a new job
The former employer continues to pay the average salary to employees dismissed during liquidation until they find themselves new job, but not longer than two months after the completion of liquidation.
If a dismissed employee is registered with the employment service within 14 days and is not employed within 3 months, he may be paid another average monthly salary (Part 2 of Article 178 of the Labor Code). At this point, the employer’s obligations to the employee cease completely and completely.
Financial support for the period of employment is not provided:
- those who worked part-time (since they remained employed elsewhere);
- hired for seasonal work;
- conscripts (with an employment contract term of 2 months or less).
IMPORTANT INFORMATION! If the dismissed employee paid alimony from his salary (in accordance with Article 109 of the Family Code of the Russian Federation), then they will be withheld from the severance pay.
All final settlements are made on the day of dismissal, and if the employee was absent, then on the next day after the employee appears with a demand for payment (Article 140 of the Labor Code of the Russian Federation).
If something is done not according to the protocol
It is better for the employer to adhere to all steps of the dismissal procedure, without neglecting documentary evidence and precision of wording. If an employee considers that he was fired illegally and applies to the court for reinstatement, errors and negligence in formalizing the termination of the employment contract can work against the entrepreneur. If the claim is satisfied, then by law it will be necessary to reinstate the dismissed person at work. And since the enterprise itself no longer exists by that time, the court will recognize the employee as dismissed, but will oblige the liquidation commission or the authority that decided to liquidate the enterprise to pay the victim an amount of compensation for forced absences.
Basic steps for an employer
So, let’s summarize the procedure for a manager planning to liquidate a company to terminate employment contracts with employees.
- Notification to the employment service (in the case when 15 or more people are released from work).
- Written notification to all persons working at the enterprise about their upcoming release after two months (indicate the exact date of this event).
- Issuance of relevant orders.
- Calculation and assignment of severance pay and other dismissal payments.
- Making final payments to employees.
- Entry in the work books of employees about dismissal at the initiative of the employer in connection with the complete liquidation of a legal entity (with reference to clause 1 of Article 81 of the Labor Code of the Russian Federation).
The downsizing procedure during the liquidation of an organization can be carried out for reasons of liquidation of the company or termination of the activities of the entrepreneur, which is of an individual nature.
In this case the employer has every right to terminate the agreement with the employee.
This fact is recorded in the first paragraph of Article 81 of the Labor Code of the Russian Federation.
Not only its direct owner, but also the co-founders of the organization, as well as government bodies. According to the first paragraph of Article 65 of the Civil Code, if a company is declared bankrupt, then the judicial authority has every reason to make a decision on liquidation.
IMPORTANT INFORMATION! The concept of layoffs of employees during the liquidation of an enterprise should not be confused with procedures for changing ownership, with the termination of the activities of a person, accompanied by general succession, as well as a change in the type of company. You can get acquainted with these processes in detail using Article 75 of the Labor Code.
A regular staff reduction is somewhat different from a reduction due to the liquidation of an enterprise. Staff reduction can be carried out by the employer in order to optimize the number of employees, encourage them to work and increase competition. Such reduction is an instrument permitted by law.
If a company officially ceases its activities, then absolutely all categories of employees are subject to dismissal. (first and third parts), as well as Article 269 of the Labor Code of the Russian Federation are proof that even such individuals as:
- Women who are pregnant or have children under three years of age.
- Unmarried women raising minor children who do not have a father listed on their birth certificate.
- Employees who have custody of a child under the age of 18 and who has disabled status.
- Guardians raising seriously ill children, disabled children, as well as children under three years of age in the absence of their mother.
- Individuals who are under 18 years of age, but are still employees of the enterprise.
Labor Code of the Russian Federation, Article 269. Additional guarantees for employees under the age of eighteen upon termination of an employment contract
Termination of an employment contract with employees under eighteen years of age at the initiative of the employer (except in cases of liquidation of the organization or termination of activities individual entrepreneur) in addition to compliance with the general procedure, is permitted only with the consent of the relevant state labor inspectorate and the commission for the affairs of minors and the protection of their rights.
Sequence of necessary actions
Measures to lay off an employee in connection with the liquidation of an enterprise are carried out in a certain sequence and include six main stages:
- If within the organization there is a trade union responsible for representing and protecting the social and labor rights and interests of the company’s employees, then this body must first be notified.
The trade union organization should be notified of the upcoming dismissal of employees in writing, as well as termination of agreements labor nature(clause 2, article 81 of the Labor Code).
Dismissals of mass numbers of personnel must be carried out in accordance with the criteria of territorial or sectoral agreements ().
The employer must inform the trade union body about the upcoming dismissal no less than three months before the procedure.
- The second stage is to notify employees about staff reductions due to the liquidation of the organization. In the event of liquidation of a company, the dismissal affects absolutely all employees. Therefore, the employer is obliged to inform everyone about the dismissal personally.
IMPORTANT! The employer has the right to inform employees about layoffs in any form. It could be like written notice, and oral form, but with a receipt signed by the employee.
- Informing Civil service employment about the impending total reduction. The owner of the company is obliged to make a notification to this service 2 months before liquidation, so as not to violate the rules of the regulatory act “On Employment in the Russian Federation”.
- Finding alternative work for staff. There are certain categories individuals, for which the employer is obliged to find a new job even in the event of complete liquidation of the enterprise. And also the owner of the company must offer other work options to the rest of the employees.
- Carrying out the actions specified in Article 373 of the Labor Code. The employer must draw up a properly executed dismissal order and send it to the primary trade union organization. You should also attach copies of documents on the basis of which the liquidation of the enterprise and mass layoffs take place.
- Return of work books to all employees without exception. The books must be returned directly on the day of dismissal. Also, upon liquidation of the company, the employer is obliged to pay severance pay to the staff.
Required documents
First of all, an order is needed to dismiss each employee of the organization.
The order must be delivered and signed by all employees.
Fill this type The document should be in accordance with the form approved by the Federal State Statistics Service (Form T-8).
IMPORTANT! When drawing up an order, the employer must take into account that the time period from the date of notification of dismissal to the date of immediate reduction must be at least two months.
A member of the liquidation commission has the right to sign such an order. After receiving the signature, the document is recorded in the registration journal. Then each employee signs the original document, which confirms familiarization with the order. All company employees are required to receive a copy of the document.
REFERENCE! The absence of any signature of the employee (upon notification, familiarization or on the receipt) is unacceptable!
The final stage of reduction in connection with the liquidation of an organization is the registration of work books. The owner of the organization, who has the authority to terminate the employment agreement, enters in the book the serial number, date and reason for the dismissal of the employee, as well as the grounds as a result of which the dismissal was made.
Upon liquidation of an enterprise dismissal occurs on the basis of the first paragraph of Article 81 of the Labor Code. The book is returned to its owner against signature in person directly on the day of the layoff, or in some cases sent by mail.
Notice periods
In case of planned dismissal due to liquidation or staff reduction, employees must be informed at least two months before the date of reduction. The warning must be accompanied by a receipt from the employee, confirming the fact of familiarization. If the employee refuses to sign a receipt, the employer must draw up a report against the employee.
In the event of mass layoffs, you must inform the union about this fact three months before the complete elimination of the staff.
The same period applies to notifying the employment service authorities.
According to Part 2, Article 180 of the Labor Code of the Russian Federation, the employer, upon liquidation of the company, must mandatory familiarize each employee with the written dismissal order and take a signature from it.
If these actions and warning periods are not observed, the employer will incur criminal liability.
Relying on the third part of the same article, there is the possibility of dismissing an employee at the request of the owner of the company before the end of the period of two months. But the period remaining before the reduction must be paid.
Employee benefits
An employee can count on the following redundancy payments in connection with the liquidation of the enterprise:
- Full payment for all days worked. monthly wages divided by the number of working days that the employee worked under the employment agreement per month. Then the number of days until liquidation is calculated and multiplied by this figure.
- Payments upon layoffs upon liquidation of an enterprise for unused vacation days. According to normative act on the calculation of vacation pay, average earnings for pay for unused vacations is calculated by dividing the employee’s salary for the last 12 months by 12, and then by the average number of working days per month (29.3).
- Receiving severance pay as average earnings. The calculation is made by summing the employee's monthly earnings and then dividing this amount by the number of months.
- Payment upon reduction upon liquidation of an enterprise in the event early termination employment contract. The employer pays the staff monetary compensation in the amount of average earnings for one day, multiplied by the number of days remaining until the expiration date of the notice of layoff.
Responsibility of the employer for non-compliance with the rights of employees
If the employer did not comply with the rights of employees, notice periods, rules for notifying certain organizations, as well as a number of other requirements enshrined in federal laws, then he will bear administrative responsibility for this.
An employee whose rights have been violated has every right to sue the employer in court. If the latter's guilt is proven, the court may order the employer to provide the employee with a new job, pay monetary compensation for certain working days, or compensate for moral damage.
Reducing staff due to the closure of an enterprise is a long and unpleasant process. However, if you follow the recommendations of this article, it will become much easier!
Dismissal due to liquidation of the organization must be accompanied by a set of actions by the personnel service. The employee must be warned in a timely manner about impending events, he must be paid the required compensation, and also be issued documents regarding labor activity. In addition, you need to send the relevant information to the Federal Tax Service and the Federal Tax Service of Russia.
General rules for dismissal during liquidation of an organization
If the organization is liquidated, then all employees are subject to dismissal - like those who are in this moment perform their labor functions, and are on vacation or sick. In addition, when dismissal due to liquidation of the organization Even employees with young children and women on maternity leave and child care cannot be kept at work.
When dismissing an employee for this reason, the company must notify within the established time frame:
- employee of the organization;
- trade union;
- employment service.
It is imperative to accrue and pay the required compensation to the employee, draw up and personally hand over the work book and income certificate. Once the liquidation procedure is completed, all personnel documents must be archived. So, let's describe the procedure in more detail.
Dismissal upon liquidation of an organization: we notify the trade union committee
The primary trade union organization should be notified of future dismissal. This must be done 3 months remaining until the termination of the employment relationship (clause 2 of article 12 of the Federal Law “On trade unions, their rights and guarantees of activity” dated January 12, 1996 No. 10-FZ).
It is allowed to compose a notification in any form. The document should contain a list of employees subject to dismissal, as well as indicate the number of the liquidation decision and the date of the protocol.
Often for signing collective agreement employees create a labor council. This association is not a trade union organization, and the law does not oblige it to notify.
Dismissal due to liquidation of the organization: notify the employment service
The employment service must also be notified that layoffs are coming. At the same time, depending on the scale (massiveness) of termination of agreements, deadlines are established within which a message must be sent to the service, and the procedure for such notification. As stated in the Decree of the Government of the Russian Federation dated 02/05/1993 No. 99, mass dismissal should be considered simultaneous termination labor agreements with 15 or more employees.
If dismissal due to liquidation of the organization massive, then the employment service must be notified 2 times:
- 3 months remaining before the start of the dismissal procedure, send Information on the mass release of workers in the form given in Appendix 1 to Resolution No. 99.
- 2 months remaining before the start of the dismissal procedure, submit Information about the dismissed employees in the form given in Appendix 2 to Resolution No. 99. They provide the personal data of each employee, his average earnings, education, profession and qualifications.
The above criteria for mass participation are not dogma. Regional authorities are given the right to determine their own limits for this indicator. However, this must satisfy the main principle: the social security of employees must not be violated (Part 1 of Article 82 of the Labor Code of the Russian Federation, Clause 2 of Resolution No. 99).
When there is no widespread dismissal, the employment service can be notified once - up to 2 months before the start of the dismissal procedure (Clause 2 of Article 25 of the Law of the Russian Federation “On Employment of the Population in the Russian Federation” dated April 19, 1991 No. 1032-1).
There is no official form for such notifications. You are allowed to compose a document in any form. It should mention the employee’s personal data, profession, personal working conditions, specialty, etc. From business practice it follows that personnel officers use the form given in Appendix 2 in such cases.
Notifications must be submitted to the employment service on paper - in person or by mail.
Warning to employees about dismissal due to liquidation of the enterprise
When dismissals due to liquidation of the organization strict deadlines have been established that the employer must meet in order to warn employees about the upcoming termination of their employment relationship. This time period should not exceed 2 months. This is done on an individual basis and necessarily against the personal signature of the employee (Part 2 of Article 180 of the Labor Code of the Russian Federation). In addition, it is necessary to notify in writing by mailing those employees who are currently on vacation (labor, pregnancy, etc.) or sick.
Note! If difficulties arise with the employee’s approval of the order (absent, does not want to get acquainted, etc.), the personnel service can send him a letter by mail. The shipment is sent by registered mail with acknowledgment of delivery. 2 months will be counted from the day on which the employee signed the receipt for receiving the letter.
The employer has the opportunity to terminate the employment relationship before the expiration of these 2 months. But this will require the written consent of the dismissed employee. In addition, in these circumstances, the employee will have to be paid compensation. It is calculated from average monthly earnings and is directly proportional to the time remaining before dismissal (Part 3 of Article 180 of the Labor Code of the Russian Federation).
To notify seasonal workers, other temporary standards are provided: the employer is given 7 calendar days (Article 296 of the Labor Code of the Russian Federation). If we are talking about persons with whom the employment relationship is valid for 2 months or less, then only 3 months are given to notify them. calendar days(Article 292 of the Labor Code of the Russian Federation).
Preparation of documents for employees dismissed due to liquidation of the organization
Termination contractual relations in the labor sphere must be accompanied by an order. When dismissing one employee, to correctly draw up an order, you should rely on form T-8; if we are talking about a group of employees, use form T-8a. Such templates are approved by the Decree of the State Statistics Committee of the Russian Federation “On approval of unified forms of primary accounting documentation on accounting of labor and its payment" dated 01/05/2004 No. 1.
The company can develop and own documents for maintaining personnel records(letter of Rostrud dated 01/09/2013 No. 2-TZ).
The order should indicate the reason for termination of the employment relationship. In this case, it means that the organization is being liquidated. This area is regulated by the norm indicated in clause 1, part 1, art. 81 Labor Code of the Russian Federation. The order, in addition, must necessarily contain a reference to the number and date of the decision to terminate the company’s activities.
On the day of dismissal, the employee must be handed over the work book (Part 4 of Article 84.1 of the Labor Code of the Russian Federation). Before this, the personnel service must properly prepare an appropriate record containing a link to the above-mentioned clause 1, part 1, art. 81 Labor Code of the Russian Federation. When picking up the book, the employee puts his signature on the personal card and signs in the book designed to record the turnover of work books (paragraph 3 of clause 41 of the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225).
In addition to the work book, the company must issue the employee a certificate of the amount of payments for which insurance premiums were calculated for the previous 2 years (subclause 3, clause 2, article 4.1 of the Federal Law “On compulsory social insurance in case of temporary disability and in connection with maternity” dated December 29, 2006 No. 255-FZ). The form of the certificate is approved in Appendix 1 to the order of the Ministry of Labor of Russia dated April 30, 2013 No. 182n.
We hand over documents for employees dismissed due to the liquidation of the organization to the archives
Documents related to both direct personnel and wages cannot be stored for less than 75 years (clause 19 of the List of standard management archival documents indicating storage periods, approved by Order of the Ministry of Culture of Russia dated August 25, 2010 No. 558).
HR documents include those that contain information about hiring, dismissal, transfers, salaries, bonuses, and certification of employees.
After the organization is liquidated and removed from the register, the specified personnel records must be transferred to the archive (municipal or state). To do this, the liquidation commission or the liquidator on behalf of the company that is terminating its activities must draw up an agreement with such an archive (Clause 10, Article 23 of the Federal Law “On Archiving in the Russian Federation” dated October 22, 2004 No. 125-FZ).
Results
When dismissing, you must comply with the time frame and procedure for informing employees and relevant departments about this fact. Otherwise, the company may be fined for violating labor laws (Article 5.27 of the Code of Administrative Offenses of the Russian Federation). Penalties are provided in the range from 35,000 to 50,000 rubles. for companies and from 1,000 to 5,000 rubles. for officials.
The liquidation of an enterprise, organization, firm, or company always ultimately leads to the complete cessation of the activities of the legal entity. This process should not be confused with other types of reorganizations, when enterprises can merge into one, transform, reduce staff, etc. Stopping the work of an enterprise and dismissing workers makes the procedure special. Therefore, dismissal due to the liquidation of an organization will also be different from dismissal of employees under other circumstances.
The procedure for terminating labor relations with personnel must be entirely carried out in accordance with the Labor Code of the Russian Federation (Labor Code of the Russian Federation). Therefore, we will consider the most important points on how to fire people from a liquidated enterprise so that everything is in accordance with the law.
With an order about his own dismissal Each employee should familiarize themselves with a signature. If a subordinate does not agree that he is being fired and refuses to sign the order, then his refusal will simply be recorded by the personnel officer in a special act, which in such cases is provided for in Part 2 of Article 841 of the Labor Code of the Russian Federation.
If an employee refuses to sign a notice of the impending cessation of the existence of the enterprise, as well as an order of dismissal in connection with liquidation, then it is better for the personnel officer to draw up an act indicating that the employee refused to sign. The act must clearly indicate the date and signature of the employee. Through the court, the enterprise will still lose the right to exist, and the employee, in turn, risks not receiving the payments that are due to him under the Labor Code of the Russian Federation as severance pay. If it is planned to liquidate a branch, then the regime for its termination and termination of employment contracts should also occur in accordance with the general procedure. However, all the documentation is signed by the head of the branch.
Early dismissal upon liquidation of an enterprise
At early dismissal the subordinate must also be notified in advance, he is given the opportunity to study the written warning and confirm it with his signature. In this case, the notification is sent earlier than 2 monthly period with a guarantee of additional payment, which is compensation assigned in such cases separately (clause 9 of Article 255 of the Tax Code of the Russian Federation).
No taxes or insurance payments will be assessed on such compensation. Everything else is carried out in the general order - you need to issue an order for each employee, make an entry in work book about dismissal, upon dismissal under Article 81, paragraph 1 of the Labor Code. Early warning period for full-time employees limited and can start from 1 month ahead of schedule, up to 2 months.
What are the features of the procedure?
In order to properly dismiss an employee and accrue to him all the payments due when the company soon ceases to exist, it is necessary to take into account such and his features. If this is a pensioner, then you should pay attention to the specifics of his dismissal. If this is a director, then there must be a specific form and procedure for terminating his official activities in this enterprise, which will not happen soon.
Dismissal of a director upon liquidation of an LLC
A director's duties in connection with the winding up of his firm will cease as soon as the order commencing the proceedings is issued. Therefore, his future fate will largely depend on whether he is accepted into the liquidation commission and on what rights.
If a manager resigns when it is necessary to liquidate the organization that he managed, then his position is taken into account - whether he will be appointed to the liquidation commission or not.
If such an employee is appointed chairman of the liquidation commission, then he, as it were, continues to manage the company, but only from the position and with the goal of ending its existence.
Such a person is also entitled to his own payments, who will appoint liquidators by a joint decision. Labor Code here also dictates the condition related to the director-citizen under Article 81, but only he is the last to be dismissed.
Dismissal of a maternity leaver upon liquidation of an enterprise
When required in such a case, it is necessary to explain to the woman that the law does not have the right to retain her workplace under such circumstances (Part 1 of Article 81 of the Labor Code of the Russian Federation). All payments due must be made for the employee in accordance with the Labor Code of the Russian Federation and taking into account all her social benefits.
The order itself in connection with the liquidation can be morally complex process Therefore, such workers should be provided with all possible social guarantees that may appear in such cases as much as possible. Workplace You can’t offer her one, because it simply won’t be available soon, but you can pay her a good severance pay.
Dismissal of pensioners, seasonal workers or part-time workers
Employees who are pensioners must also resign according to the laws of the Labor Code of the Russian Federation. Such an employee is also notified two months in advance and is paid an appropriate allowance in the amount of 2 weeks’ average earnings. With seasonal workers or part-time workers, the same termination of employment occurs.
The only thing is that with those who were hired temporarily, for a period of less than two months, you simply need to terminate the contract, without any payments other than what you earned. Therefore, the departure of a pensioner, part-time worker or seasonal worker is processed in the same way as with main workers, only with a difference in the amount of payments and notice periods.
Payments to employees when they face dismissal due to liquidation of the enterprise
In order to correctly make all accruals and payments to dismissed employees, you must follow a certain procedure and rules:
- Earnings are taken into account for the period of time already worked that was not paid, which ends with the date of issuance of the dismissal order.
- If a subordinate did not have time to rest on vacation according to the schedule, then he is entitled to compensation for the fact that he did not use calendar leave.
- The severance pay is calculated in the accounting department in a special way and amounts to payment for 2 months, and for residents of the Far North - 3 months of being registered with the employment center, provided that the dismissed person has not been able to find another job during all this time.
Taken into account average monthly earnings, which for dismissal during the liquidation of a full-time employee is taken as a monthly average, for a seasonal employee - two weeks. But for a conscript hired for a period of less than 2 months, severance pay is not provided.
If an employee pays alimony but is dismissed due to the liquidation of the organization, then his benefit will necessarily be calculated taking into account this financial obligation. He is obliged to pay the children a certain portion of his earned income, determined by a court decision. Therefore, it is the court decision and the amount determined in the decision that will be taken into account.
There is still social protection and guarantees for those dismissed by order in connection with the cessation of the existence of an enterprise. But for this, employees must be officially employed labor legislation RF.
Because if people work for a company without official registration, then they are most at risk of being left without severance pay in the event of a liquidation process. There are cases when an employer takes care of his subordinates and, dismissing them, offers them other jobs at other enterprises, having previously agreed with other employers.
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