Dismissal in connection with the liquidation of the enterprise is stress for employees due to loss of earnings. The legislator provided for them some guarantees and compensations. Meanwhile, unreliable employers, taking advantage of the legal illiteracy of employees, cover up other types of reforming the company's activities with liquidation and force them to quit their jobs. own will. We will talk about all aspects of the dismissal associated with the liquidation of the enterprise in this article.
What is liquidation of an organization
The liquidation of an organization is complex and quite long procedure, the ultimate goal of which should be to apply to 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.
The liquidation of the company is carried out voluntarily by the decision of the founders of the legal entity (IE) or forcibly by a court decision.
In case of voluntary liquidation of an enterprise, a brief scheme of events looks like this:
It becomes clear that after the completion of all stages of liquidation, the enterprise ceases to exist and it has no successors. However, quite often employers disguise other forms of reorganization of activities as liquidation in order to profitably get rid of objectionable employees.
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 its name, address, director). And we were asked to write a letter of resignation of our own free will.
Note! Dismissal of one's own free will is possible only at the request of the employee, and not because of some external circumstances and someone's requests. And in this case the employer simply does not want to pay upon dismissal of his employees.
The liquidation of an enterprise should be distinguished from such changes in the operation of the organization, such as:
- change of the owner of the company or management;
- change of name, address, location;
- reorganization of an enterprise by joining another legal entity or merging two legal entities.
If the owner of the organization changes, for ordinary workers, in most cases, this does not entail any changes. The cashier or the seller, in general, does not care who is listed as the founder of their LLC. If the new owner decides to change the organization's management and staff, he can carry out a staff reduction procedure, paying the employees all the due amounts, or dismiss the 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 into another, it is obvious that part of the staff becomes redundant, since there is no need for 2 directors, 2 personnel officers, etc. However, this does not mean that extra people should quit themselves. In this case, the dismissal is also carried out as part of the downsizing procedure or by agreement of the parties with the payment of a severance pay.
The procedure for the dismissal of employees during the liquidation of the 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 laws dismissal due to company liquidation takes place in 5 stages:
The Labor Code of the Russian Federation provides for employees the opportunity to terminate an employment contract earlier than 2 months before the mass dismissal of employees expires. The consent to early dismissal from the employee must be in writing, and the company is obliged to compensate him for the average earnings for the days remaining before the planned dismissal.
Dismissal in connection with the liquidation of the enterprise dedicated to paragraph 1 of Art. 81 of the Labor Code of the Russian Federation. It is this norm that should 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 the basis for terminating the employment contract:
- transfer to another place of work (clause 5, article 77 of the Labor Code of the Russian Federation);
- the worker's own desire (clause 3, article 77 and article 80 of the Labor Code of the Russian Federation);
- an agreement between an employee and an employer (clause 1, article 77 and article 78 of the Labor Code of the Russian Federation).
In these cases, the enterprise saves on payments to the employee provided for upon dismissal in connection with the liquidation.
Severance pay upon dismissal in connection with the liquidation of the organization
The amount of the allowance, designed to compensate for the loss of work, is established in Art. 178 of the Labor Code of the Russian Federation. When leaving due to the termination of the organization, the employee must receive:
- 1 average monthly salary when calculating;
- 1 average monthly salary for the period of employment for 2 months
V exceptional cases by decision of the employment service, a citizen can receive another 1 average salary if he is not employed within 3 months (provided that the employee is registered with the labor exchange within 2 weeks after the dismissal).
As a rule, 2 average salaries are paid to employees at the enterprise immediately upon dismissal, but in order to receive the 3rd payment, you need to contact the employment service.
In addition to the dismissal benefit in connection with the liquidation, each employee must receive the usual payments upon termination of the employment contract:
- salary for hours worked;
- compensation for unused days holidays;
- other payments that may be provided for by the internal documents of the organization, for example, a collective agreement.
Payments upon liquidation of the enterprise to maternity leave and sick leave
After the company ceases operations, the most questions arise for those who are preparing to go on maternity leave, are on parental leave, or fall ill after being fired. Meanwhile, the state provides certain provision for these most vulnerable categories of citizens.
In pp. 3 and 4 art. 13 of the Federal Law "On Compulsory Social Insurance ..." dated December 29, 2006 No. 255-FZ, it is reported that if former employee of the liquidated enterprise fell ill within a month after the dismissal, payment for sick leave produces the Social Insurance Fund, where you need to apply with documents within 6 months (but it's better not to delay!). The same rules apply to expectant mothers who go on sick leave for pregnancy and childbirth.
As for employees dismissed during a decree or parental leave, after dismissal, they need to contact the social security authority at their place of residence. In social security, you need to submit a certificate of salary for the past 12 months. Based on these documents, it will be calculated and paid monthly allowance in the amount of 40% of the average earnings, and not the minimum, as the unemployed.
Important! Child care allowance will be paid only to those who are not registered with the employment service and, accordingly, do not receive unemployment benefits.
It should be borne in mind that receiving benefits for disability, pregnancy and childbirth and child care through state organizations does not exclude and does not 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. The liquidation of the company and the termination of the employer's activities are the reason for the final settlement with employees. How to competently conduct the process of dismissal in connection with such a circumstance, we analyze in this article.
The scary word "liquidation"
When activity legal entity becomes ineffective, loses its usefulness, no longer eligible for continuation, 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, such activities of the entrepreneur must be completely stopped, such as:
- production;
- scientific;
- technical;
- trading;
- public;
- credit.
After the completion of this process, the former legal entity should be in a state of absence of any rights and obligations to anyone. He can no longer be required to return debts, pay compensation, documents for verification. All his statements from the moment of liquidation will have no legal value.
FOR YOUR INFORMATION! Other legal entities do not have the right to inherit obligations, as well as the rights of a liquidated one (clause 1, article 61 of the Civil Code of the Russian Federation).
The liquidation process is considered completed when an entry about 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, article 81 of the Labor Code of the Russian Federation).
"Letters of Happiness"
Preparation for liquidation begins 2 months before the start of the work of the relevant commission. During this period, employees are given written notices that the enterprise ceases to exist after 60 days (the exact date must be specified), 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:
- those on vacation (usual, 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 old (children with disabilities under 18);
- those who bring up children deprived of a mother;
- underage workers.
The notice period is reduced to terminate fixed-term contracts: employees who are not going to cooperate with the company for more than 2 months are warned 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, 2 documents must be prepared: on one of them he must leave his visa confirming familiarization, the second is issued to him in his hands.
IMPORTANT INFORMATION! If all employees of an organization whose staff exceeds 15 people are going to be fired, then the employer must notify the employment service about this (in writing, also 2 months in advance).
If the employee has a vacation or is sick, this document will be delivered to him by registered mail, notifying the employer of delivery to the addressee. The same can be done if the dismissed person does not want to sign in the acquaintance: this will protect against a possible challenge 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 notification form is not normatively fixed, therefore it can be arbitrary, the main thing is the presence of the full name of the employee and the date of the upcoming liquidation, which is also the date of dismissal.
After the dismissal of employees, the liquidation commission begins its work.
Leave before it's over
If the employee who has received the notice has a desire to leave work ahead of schedule, the employer can meet him halfway. With the written consent of the employee, the employer issues an order for early termination labor relations. At the same time, it is necessary to calculate and pay additional finances as compensation (it will be a part of the average earnings corresponding to the days remaining until the liquidation). Such a procedure is permitted by Article 180 of the Labor Code Russian Federation.
For another article?
If for some reason employees do not want to link the end of cooperation with the liquidation of the company, they can choose another reason for this:
- at the request of the employee;
- by agreement of the parties;
- due to job change.
REMEMBER! All other legitimate reasons do not give the dismissed person the right to receive severance pay.
Organization's latest payouts
Leaving the disappearing organization, the employee receives the usual dismissal payments (salary and compensation for non-vacation days), as well as severance pay on the liquidation of the enterprise. You will have to calculate the average amount of earnings per month.
Seasonal workers will receive earnings in 14 days (part 3 of article 296 of the Labor Code of the Russian Federation), and upon termination of a fixed-term employment contract, severance pay is not provided (part 3 of article 292 of the Labor Code of the Russian Federation).
IMPORTANT! The payment of this allowance will be received by both full-time employees for whom this work is the main one, and those working part-time.
Support during the search for a new job
The former employer continues to pay the average salary to employees laid off during the liquidation until they find themselves new job, but not longer than two months after the completion of the liquidation.
If a dismissed employee registered with the employment service within 14 days and did not find a job within 3 months, he can be paid another average monthly salary (part 2 of article 178 of the Labor Code). On this, the obligations of the employer to the employee are completely and finally terminated.
Financial support for the period of employment is not allowed:
- who worked part-time (since they remained employed elsewhere);
- accepted 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 also be deducted from the severance pay.
Everything final settlements are made on the day of dismissal, and if the employee was absent, then on the next day after the appearance of the employee with the requirement of calculation (Article 140 of the Labor Code of the Russian Federation).
If something is done out of protocol
It is better for the employer to adhere to all steps of the dismissal procedure, without neglecting documentary evidence and precise wording. If the employee considers that he was dismissed illegally and applies for reinstatement to work in court, errors and negligence in the execution of the termination of the employment contract can play against the entrepreneur. If the claim is satisfied, then according to the 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 recognizes the employee as dismissed, but will oblige the liquidation commission or authority that decided to liquidate the enterprise to pay the victim the amount of compensation for forced absenteeism.
Key steps for an employer
So, let's summarize the procedure for the leader planning the liquidation of the company to terminate employment contracts with employees.
- Message to the employment service (in the case when 15 or more people are released from work).
- Written notification of all persons working at the enterprise about their impending release two months later (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.
- An 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 reduction procedure during the liquidation of an organization can be carried out for reasons of liquidation of the company or suspension of the activities of the entrepreneur, which is of an individual nature.
In this case the employer has the full 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 the direct owner of the company, 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 decide on liquidation.
IMPORTANT INFORMATION! One should not confuse the concept of reduction of employees during the liquidation of an enterprise with procedures for changing the owner, with the termination of the activity of a person, accompanied by a general succession, as well as a change in the type of company. You can learn more about these processes using Article 75 of the Labor Code.
The usual staff reduction is somewhat different from the reduction in connection with the liquidation of the enterprise. Staff reductions can be carried out by the employer in order to optimize the number of employees, stimulate them to work and increase competition. Such reduction is a tool permitted by law.
If the company officially ceases its activities, then absolutely all categories of employees are subject to dismissal. (parts one and three), 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 the age of three.
- Unmarried women raising minor children who do not have a father's name on their birth certificate.
- Employees who take care of a child under the age of 18 who has the status of a disabled person.
- Guardians raising seriously ill children, children with disabilities, as well as children under three years of age in the absence of a mother.
- Individuals who are under the age of 18, but they are 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 the age of eighteen at the initiative of the employer (except in the event of liquidation of the organization or termination of activities individual entrepreneur) in addition to observing the general procedure, it is allowed only with the consent of the relevant state labor inspectorate and the commission for minors and the protection of their rights.
The sequence of necessary actions
Measures to reduce the employee in connection with the liquidation of the 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 informed of the upcoming dismissal of employees in writing, as well as termination of agreements labor nature(paragraph 2, article 81 of the Labor Code).
Dismissals of a massive number of personnel must be carried out in accordance with the criteria of territorial or sectoral agreements ().
The employer must inform the trade union about the upcoming dismissal no less than three months before the procedure.
- The second stage is the notification of employees about the reduction in staff in connection with the liquidation of the organization. In the event of liquidation of the company, the dismissal affects absolutely all employees. Therefore, the employer is obliged to inform everyone personally about the dismissal.
IMPORTANT! The employer has the right to inform employees about the reduction in any form. It could be like written notice, and an oral form, but with a receipt signed by the employee.
- Informing public service employment about the coming total reduction. The owner of the company is obliged to make a report to this service 2 months before the liquidation, so as not to violate the rules of the regulatory act “On Employment in the Russian Federation”.
- Search for 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 the complete liquidation of the enterprise. And also the owner of the company must offer other work options to the rest of the employees.
- Implementation of the actions specified in Article 373 of the Labor Code. The employer must draw up a duly executed dismissal order and send it to the primary trade union organization. You should also attach copies of the documents on the basis of which the liquidation of the enterprise and the mass reduction take place.
- Return of work books to all employees without exception. Books must be returned on the day of departure. Also, when the company is liquidated, 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 communicated and signed by all employees.
Fill this species the document follows 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 interval from the date of the notice of dismissal to the date of direct 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 log. Then each employee puts a signature on the original document, which is a confirmation of familiarization with the order. All employees of the company are required to receive a copy of the document.
REFERENCE! The absence of any signature of the employee (when notified, familiarized or on receipt) is not acceptable!
The final stage of the reduction in connection with the liquidation of the organization is the execution 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 reduction of the employee, as well as the reasons for the dismissal.
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 receipt in person directly on the day of reduction, or in some cases sent by mail.
Terms of notice
In the event of a planned dismissal due to liquidation or reduction in staff, 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 acquaintance. If the employee refuses to conclude a receipt, the employer must draw up an act against the employee.
In the event of a mass layoff, you must report this fact to the union three months before the complete liquidation of the state.
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 without fail familiarize each employee with a written order of dismissal and take a signature from him.
If these actions and warning periods are not observed, the employer will be held criminally liable.
Relying on the third part of the same article, it is possible to dismiss an employee at the request of the owner of the company before the end of a period equal to two months. But the period remaining until the reduction must be paid.
Employee benefits
An employee can count on the following reduction payments in connection with the liquidation of the enterprise:
- Full pay for all days worked. monthly wages divided by the number of working days that the employee worked under an employment agreement per month. Then calculate the number of days until liquidation and multiply by this figure.
- Payments in case of reduction upon liquidation of the enterprise for unused vacation days. According to normative act on the calculation of vacation pay, average earnings for payment 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 an average salary. The calculation is made by summing up the employee's monthly earnings and then dividing this amount by the number of months.
- Payment upon reduction upon liquidation of the enterprise in the event of 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 before the end of the notice date for the reduction.
Responsibility of the employer for non-observance of the rights of employees
If the employer did not comply with the rights of employees, the notice period, the 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 a judicial authority. If the latter is proved guilty, 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 the staff due to the termination of the enterprise is a long and unpleasant process. However, if you follow the recommendations of this article, it will become much easier!
Dismissal in connection with the liquidation of the organization should be accompanied by a set of actions of the personnel service. The employee must be warned in a timely manner about impending events, he must be paid the due compensation, and also issue documents on labor activity. In addition, you need to send relevant information to the Federal Tax Service and the FSS of Russia.
General rules for dismissal upon liquidation of an organization
If the organization is liquidated, then all employees are subject to dismissal - both those who are in this moment perform their labor functions, as well as those who are on vacation or sick. In addition, at dismissal due to the liquidation of the organization even employees with young children, women on maternity leave and childcare leave cannot be left at work.
Dismissing an employee for this reason, the company must notify in due time:
- an employee of the organization;
- trade union;
- employment service.
It is imperative to accrue and pay the employee the required compensation, draw up and hand over the work book and income statement personally. Once the liquidation procedure is completed, all personnel documents should be archived. So, let's describe the procedure in more detail.
Dismissal during the liquidation of the organization: we notify the trade union committee
The primary trade union organization should be notified about the future dismissal. This must be done within 3 months remaining until the termination of labor relations (clause 2, article 12 of the Federal Law “On trade unions, their rights and guarantees of activity” dated 12.01.1996 No. 10-FZ).
It is allowed to make a notice in any form. The document should provide a list of employees subject to dismissal, as well as indicate the number of the decision on liquidation and the date of the protocol.
Often to sign collective agreement workers create a council of the labor collective. This association is not a trade union organization, and the legislation does not oblige to notify it.
Dismissal due to the liquidation of the organization: we notify the employment service
The fact that layoffs are coming must be notified to the employment service. At the same time, depending on the scale (mass character) of the termination of agreements, the terms are set 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 of February 5, 1993 No. 99, mass layoffs should be considered a simultaneous termination labor agreements with 15 or more employees.
If dismissal due to the liquidation of the organization mass, then the employment service must be notified 2 times:
- For 3 months remaining before the start of the dismissal procedure, send Information on the mass dismissal of employees in the form given in Appendix 1 to Resolution No. 99.
- For the 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 contain the personal data of each employee, his average earnings, education, profession and qualifications.
The above criteria of mass are not a dogma. Regional authorities are given the right to determine their own scope for this indicator. However, this should satisfy the main principle: the social security of employees should 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 mass character during layoffs, the employment service can be notified 1 time - in the period up to 2 months before the start of the dismissal procedure (clause 2, article 25 of the Law of the Russian Federation “On employment in the Russian Federation” dated April 19, 1991 No. 1032-1).
There is no official form for such notifications. It is allowed to compose a document in any form. It should mention the personal data of the employee, profession, personal working conditions, specialty, etc. It follows from business practice that personnel officers in such cases also use the form given in Appendix 2.
Notifications should be submitted to the employment service on paper - in person or by mail.
Warning employees about dismissal in connection with the liquidation of the enterprise
When layoffs due to company liquidation there are strict deadlines that the employer must meet in order to warn employees about the upcoming termination of the employment relationship. This time period should not exceed 2 months. This is done on an individual basis and always under 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 warn in writing by mailing those employees who are currently on vacation (labor, pregnancy, etc.) or sick.
Note! If there are difficulties with the approval of the order by the employee (absent, does not want to get acquainted, etc.), the personnel department can send him a letter by mail. The shipment is made by registered mail with acknowledgment of receipt. 2 months will be counted from the day on which the employee signed the receipt of receipt of 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 issue compensation. It is calculated from the average monthly earnings and is directly proportional to the time left 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 labor relations are registered for 2 months or less, then only 3 months are given for their notification. calendar days(Article 292 of the Labor Code of the Russian Federation).
Preparation of documents for employees dismissed in connection with the liquidation of the organization
Termination contractual relations in the labor sphere must be accompanied by an order. When dismissing one employee, for the correct preparation of the order, one should focus on the T-8 form, if we are talking about a group of employees, on the T-8a form. 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 the accounting of labor and its payment "of 05.01.2004 No. 1.
The company can develop and own documents to maintain personnel records(Rostrud letter dated 01/09/2013 No. 2-TZ).
The order should indicate the reason for the termination of the employment relationship. In this case, it consists in the fact that the organization is being liquidated. This area is regulated by the norm indicated in paragraph 1 of part 1 of Art. 81 of the 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.
On the day of dismissal, the employee must hand 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 draw up a suitable entry containing a link to the already mentioned paragraph 1 of part 1 of Art. 81 of the Labor Code of the Russian Federation. When picking up the book, the employee signs in a personal card and signs in a book designed to account for the turnover of work books (paragraph 3, clause 41 of the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of 04.16.2003 No. 225).
In addition to the work book, the company must issue to the employee a certificate of the amounts of payments for which insurance premiums have been accrued for the previous 2 years (subparagraph 3, paragraph 2, article 4.1 of the Federal Law “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood” dated December 29, 2006 No. 255-FZ). The certificate form 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 on employees dismissed in connection with the liquidation of the organization to the archive
Documents relating both directly to personnel and remuneration cannot be stored for less than 75 years (clause 19 of the List of typical managerial archival documents indicating the storage periods, approved by order of the Ministry of Culture of Russia dated August 25, 2010 No. 558).
Personnel documents include those that contain information about the admission, dismissal, transfers, salaries, bonuses, and certification of employees.
After the organization is liquidated and removed from the register, the indicated papers on personnel must be transferred to the archive (municipal or state). To do this, the liquidation commission or the liquidator, on behalf of the company terminating 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 10.22.2004 No. 125-FZ).
Results
When dismissing, it is necessary to observe the time frame and procedure for reporting this fact to employees and relevant departments. 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, company always leads in the end to the complete cessation of the activities of a legal entity. This process should not be confused with other types of reorganizations, when enterprises can merge into one, transform, reduce staff, and so on. Stopping the work of the enterprise laying off workers makes the procedure special. Therefore, dismissal in connection with the liquidation of the organization will also be different from the dismissal of employees in other circumstances.
The procedure for terminating labor relations with personnel should be carried out entirely 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 own dismissal each employee should be familiarized with a receipt. If the 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 with a special act, which in such cases is provided for by Part 2 of Article 841 of the Labor Code of the Russian Federation.
If the employee refuses to sign a notice of the impending termination of the existence of the enterprise, as well as an order to dismiss due to 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, anyway, the enterprise will lose the right to exist, and the employee, in turn, runs the risk of not receiving payments that are due to him under the Labor Code of the Russian Federation as a severance pay. If it is planned to liquidate a branch, then the regime for its termination and termination of employment contracts should also take place in a general manner. True, the head of the branch already signs all the documentation there.
Early dismissal upon liquidation of the 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. Notification is sent in this case before 2 monthly period with a guarantee of an additional payment, which is compensation assigned separately in such cases (clause 9 of article 255 of the Tax Code of the Russian Federation).
No taxes or insurance payments are charged on such compensation. Everything else is carried out in a general manner - you need to issue an order for each employee, make an entry in work book on 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, accrue to him all the payments due, when the company ceases to exist soon, it is necessary to take into account such and its features. If this is a pensioner, then you should pay attention to the features of his dismissal. If this is a director, then its own form and procedure for terminating his official activity in this enterprise, which will not happen soon, must be observed.
Dismissal of a director upon liquidation of an LLC
The duties of a director in connection with the liquidation of his firm will be terminated as soon as an order is issued to start the procedure. Therefore, in many ways, his future fate will depend on whether he will be accepted into the liquidation commission and on what rights.
If the head is dismissed when it is required 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 a position and with the aim of completing its existence.
Such a person is also entitled to his own payments, which will be appointed by the company of liquidators by a joint decision. Labor Code here he also dictates a condition related to the citizen director under Art. 81, but only he is the last to be fired.
Dismissal of a woman on maternity leave during the liquidation of an enterprise
When required on such an occasion, then here it is necessary to explain to the woman that the right to leave her workplace under such circumstances is not legally available for her (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.
Order and itself in connection with the liquidation morally can be complex process Therefore, such workers should be provided with all possible social guarantees that may appear in such cases. Workplace you won’t offer her, because it simply won’t be soon, but you can pay a good severance pay.
Dismissal of pensioners, seasonal workers or part-time workers
Employees who are pensioners must also leave according to the laws of the Labor Code of the Russian Federation. Such an employee is also given two months' notice and is paid an appropriate allowance in the amount of two 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 just need to terminate the contract, without any payments other than earned. Therefore, the departure of a pensioner, part-time worker or seasonal worker is drawn up in the same way as with the main workers, only with a difference in the amount of payments and notice periods.
Payments to employees when they are threatened with dismissal due to the liquidation of the enterprise
In order to correctly make all accruals and payments to laid-off employees, it is necessary to follow a certain procedure and rules:
- Earnings are taken into account for the already worked period of time that was not paid, which ends with the date the order for dismissal is issued.
- If the 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 the calendar vacation.
- Severance pay is calculated in the accounting department in a special way and amounts to a payment of 2 months, and for residents of the Far North - 3 months of being registered with an employment center, provided that the dismissed person could not 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 an average monthly, for a seasonal worker - two weeks. But for a conscript hired for a period of less than 2 months, severance pay is not due.
If an employee pays alimony, but is dismissed due to the liquidation of the organization, then his allowance will be necessarily calculated taking into account this financial obligation. He is obliged to pay the children a certain part of his earned income, determined by a court decision. Therefore, it is the court's decision and the amount that is 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 termination of the existence of the enterprise. But for this, employees must be formally arranged according to labor law RF.
Because if people work at a firm 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, by dismissing them, offers them other jobs, at other enterprises, having previously agreed with other employers.
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