What payments are due in case of staff reduction? Severance pay upon dismissal due to staff reduction. Terms of payments when laying off an employee

In the event of liquidation (termination of activities) of an organization and a reduction in the number or staff of employees, the employer may dismiss the employee on his own initiative. When reducing the number or staff of employees, it is important not only to strictly follow the dismissal procedure, but to accurately determine the monetary payments due to the employee for reduction. The procedure and due payments in the event that dismissal due to reduction, are specified in articles 81, 178–180 of the Labor Code.

Payments upon dismissal due to staff reduction

Dismissal due to reduction states in accordance with paragraphs 1 and 2 of part 1 of Article 81 of the Labor Code assumes that the employee is entitled to social benefits for layoffs. Let's list what payments are due upon redundancy:

• severance pay in case of staff reduction in the amount of the average monthly earnings of the dismissed employee. If the collective agreement or employment contract provides for redundancy benefits in an increased amount, then the employer is obligated to pay redundancy benefits in this amount upon dismissal due to redundancy;
• maintaining average earnings for the period of employment, but not more than two months from the date of dismissal. At the same time, the average employee’s earnings include the entire amount of severance pay in case of staff reduction (Part 1 of Article 178 of the Labor Code of the Russian Federation).​ See how to calculate.

In some cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service authority. But only on the condition that the employee contacted the employment service within two weeks after dismissal and was not employed by him. This is what Part 2 of Article 178 of the Labor Code of the Russian Federation prescribes.

The countdown of the two-week period begins the next day from the calendar date specified in the order of dismissal due to staff reduction. The two-week period also includes non-working days.

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Payments in cases where dismissal due to reduction, there may be more. Thus, in a certain situation, an employee is entitled to so-called “compensation” compensation when staffing is reduced.

As a general rule, employees must be notified of an upcoming dismissal due to a reduction in numbers or staff at least two months before the dismissal (see sample notification below). If an employee quits without waiting for the layoff date, he has the right to count on additional compensation upon dismissal.

The amount of additional compensation in case of staff reduction is equal to the average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal. Consent to early dismissal must be in writing.

Additional compensation that is paid to an employee upon termination of an employment contract due to staff reduction before the expiration of a two-month period, like “basic” payments upon staff reduction, is not included in the tax base for personal income tax (Article 217 of the Tax Code of the Russian Federation).

The provisions of Article 178 of the Labor Code in relation to other cases of payment of severance pay or the establishment of increased amounts of severance pay are permissive in nature. Such payments cannot be exempt from personal income tax, since these payments, when reduced, cannot be classified as benefits specified in Article 217 of the Tax Code. Thus, payments in an increased amount in the event that dismissal due to reduction, are subject to personal income tax on a general basis.

There are situations when an employee, who received a final payment on the day of dismissal and does not claim any further payments, after some time again contacts the organization with a request for additional money. This is possible if the former employee fell ill within 30 calendar days after termination of work under the employment contract (clause 2 of article 7 Federal Law RF dated December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”). In this case, the employer is obliged to pay for temporary sick leave.

The organization must notify employees of dismissal due to liquidation at least two months in advance against signature. Employment contracts with employees can be terminated before the expiration of the two-month period. In this case, they must provide written consent to such dismissal. This is established by Article 180 of the Labor Code of the Russian Federation.

Mandatory payments upon liquidation of an enterprise:

• severance pay;
• maintaining average earnings for the period of employment. This is stated in Part 1 of Article 178 of the Labor Code of the Russian Federation.

Labor Code guarantees that the employer will make redundancy payments. In times of crisis, staff reduction is a common measure to maintain a company's financial balance.

It is important for employees who have lost their jobs to know their rights in the current circumstances, which are determined by a number of articles of the Labor Code of the Russian Federation.

Notifying employees about layoffs

The reduction procedure begins with the issuance of an order. Although there is no clearly defined form for this document, it always contains a date. After this, changes in staffing are recorded in the text.

In accordance with Article 180 of the Labor Code of the Russian Federation, the employer’s responsibilities include notifying workers about vacant positions, if any. Depending on the date after which the reduction will begin, the timing of delivery of notifications is determined.

A notification to an employee under the Labor Code of the Russian Federation must meet a number of conditions.

1. To be given at least two months before the planned date of dismissal.
2. The document is prepared for each individual employee.
3. The message is issued against signature.
4. Contains offers with other available vacancies.

Important:if the dismissed employee is satisfied with one of the proposed vacancies, in accordance with the requirement of the Labor Code of the Russian Federation, instead of being laid off, he is transferred to another position. If he refuses, he is fired. A worker may be dismissed earlier than the period specified in the order with written consent.

Which regulatory agencies should be notified?

If an employee is laid off, after the order is issued, the official should notify:

• trade union;

Notifications to the union are sent at least two months before the planned dismissal. In case of extensive planned dismissal, this period will reach three months.

Notification of dismissal is given to both unionized and non-unionized employees.

Within the same time frame, after issuing the order, you must notify the employment service. After the order, the head of the company transmits information about the number of laid-off workers.

He also informs about their positions, specialties, volume and duration of work at the enterprise.

Amount of severance pay and timing of payments upon reduction

The final working day is officially considered the day of dismissal. After the layoff, a corresponding note is made in the work book (if lost, it is possible) of the dismissed employee with reference to clause 2, part 1, article 81 of the Labor Code of the Russian Federation.

On the same day, he is provided with the required payments, which are determined by the Labor Code. Among them:

• wage;
• in the presence of unrealized vacation - ;
• redundancy allowance.

How long does it take to pay compensation upon dismissal?

In the absence of a suitable position, the employee is entitled to compensation upon dismissal for the second month of unemployment.

He needs to show his former employer his work record book, which contains no marks of employment after leaving his previous position.

The required compensation, the amount of which is calculated as the amount of severance pay, can be received even in half a month. To do this, you will also need to present your work record book.

Important:To receive compensation after two months, within 14 days of dismissal, an employee who has been laid off must register with the employment service.

If the above condition is met, the employee can count on compensation for the third month of unemployment if he is not employed.

You should immediately contact the employment service, as searching for a new job can take a lot of time. To receive payment for the third month upon dismissal, you will need to present a certificate from the employment service along with your work book.

Compensation is also paid for part of the third month. In this case, a note about the new workplace must be made in the work book.

To receive a payment, you need to know what documents are required. Present a copy of the page of the work book with the last mark. It must be certified by the new employer.

How does pre-emptive right work?

When compiling a list of employees who will be terminated, managers take into account the preferential right to remain for some employees. When deciding which employees will be laid off, there are two main criteria to consider.

1. Due to staff reductions, groups of employees such as pregnant women or mothers with children under three years of age cannot be dismissed.
2. When choosing between two candidates, the employee with greater labor productivity and a high degree of qualification remains. This also applies to pensioners.

In cases that do not fall under these criteria, the following categories have priority to remain in the workplace.

• Employees with a family and two or more people in their care.
• Employees whose family members do not have their own income.
• Those who received this enterprise occupational disease or injury.
• Taking advanced training courses in conjunction with work duties.
• Disabled people, and groups, participants in hostilities.

Reduction of employees who have reached retirement age

The reduction of pensioners occurs according to the same algorithm. According to Part 1 of Article 77 of the Labor Code of the Russian Federation, the fact of reaching retirement age is not a basis for dismissal.

When staffing is reduced, the employee also receives notice at least 2 months before the last working day. The document is prepared personally and issued against signature.

Upon dismissal, pensioners, as well as employees of other age groups, according to Article 178 of the Labor Code of the Russian Federation, are paid:

• full amount of severance pay;
• compensation for 2 months of unemployment;
• upon presentation of a certificate from the employment service - benefits for the third month of unemployment.

When making a decision to reduce staff, the priority is not legal basis according to the Labor Code of the Russian Federation. They are paid the full amount of severance pay.

In fact, an employee who has reached retirement age has a preferential right to remain in office. When choosing a candidate, the employee with more highly qualified.

Registration of a work book

Dismissal due to staff reduction requires that the necessary note be made in the employee’s work book. In this case, reference is made to clause 2, part 1 of Art. 81 Labor Code of the Russian Federation. It is indicated that the employee was dismissed due to staff reduction.

Both retirees and employees of other age categories are given vacant positions in addition to severance pay. The Labor Code of the Russian Federation does not regulate the period within which an employee is obliged to give an answer.

The Labor Code provides for the planned dismissal of employees as part of working practice. At the same time, legislation determines the procedure for this procedure and protects the rights of employees.

The employer is obliged to make payments taking into account the full amount of severance pay and compensation for the first two months of unemployment. As prescribed by the Labor Code of the Russian Federation, it offers available vacancies if they are available at the enterprise.

Dismissal of employees due to staff reduction

Currently, many institutions under the jurisdiction of the Ministry of Culture are taking steps to reduce staff and (or) personnel. We will tell you in the article what guarantees and compensations employees are entitled to during such events and how to correctly carry out the procedure for final settlement with employees.

Dismissal due to a reduction in staff and (or) number of personnel refers to dismissal at the initiative of the employer (clause 2, part 1, article 81 of the Labor Code of the Russian Federation).

The procedure for reducing staff (numbers) involves the implementation of certain measures under the Labor Code of the Russian Federation and other regulatory documents, as well as the provision of a number of guarantees and compensations to employees (see table).

Average earnings for calculating compensation payments

Compensation payments upon dismissal due to staff reduction are calculated based on the average salary, the calculation procedure of which is regulated by Art. 139 of the Labor Code of the Russian Federation and the Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922 (hereinafter referred to as Regulation N 922).

In any mode of operation, the average salary of an employee is calculated based on the salary actually accrued to him and the time he actually worked for the 12 calendar months preceding the period during which the employee retains his average salary. In this case, a calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive).

When calculating average earnings, we take into account all types of payments provided for by the remuneration system, applied by the relevant employer, regardless of the sources of these payments, in particular (clause 2 of Regulation No. 922):

1) wages accrued to the employee:

- By tariff rates, salaries (official salaries) for time worked;

- for work performed at piece rates;

— for work performed as a percentage of revenue from sales of products (performance of work, provision of services), or commission;

2) funds accrued in editions mass media and art organizations, fees for employees on the payroll of these editorial offices and organizations, and (or) payment for their labor, carried out at the rates (rates) of author's (production) remuneration;

3) wages paid in non-monetary form;

4) wages, finally calculated at the end of the calendar year preceding the event, determined by the remuneration system, regardless of the time of accrual;

5) allowances and additional payments to tariff rates, salaries (official salaries) for professional excellence, class, length of service (work experience), knowledge foreign language, work with information constituting state secrets, combining professions (positions), expanding service areas, increasing the volume of work performed, team management, etc.;

6) bonuses and rewards provided for by the remuneration system;

7) payments related to working conditions, including payments determined by regional regulation of wages (in the form of coefficients and percentage bonuses to wages), increased wages for hard work, work with harmful and (or) dangerous and other special conditions labor, for night work, payment for work on weekends and non-working days holidays, overtime pay;

8) other types of wage payments applicable to the relevant employer.

When calculating average earnings, they are not taken into account social payments and other payments not related to wages, in particular (clause 3 of Regulation No. 922):

— material aid(at birth, adoption of a child, in connection with retirement due to disability or age, in connection with the death of a member(s) of the employee’s family, etc.);

— cost of food, travel, training;

— cost of sanatorium-resort treatment;

- compensation for utility bills.

When calculating average earnings, it is excluded from the calculation period time, as well as amounts accrued during this time, if (clause 5 of Regulation No. 922):

— the employee retained his average earnings in accordance with the legislation of the Russian Federation, with the exception of breaks for feeding the child provided for labor legislation RF;

- the employee received temporary disability benefits or maternity benefits;

- the employee did not work due to downtime due to the fault of the employer or for reasons beyond the control of the employer and employee;

- the employee did not participate in the strike, but due to this strike he was not able to perform his work;

- the employee was provided with additional paid days off to care for disabled children and people with disabilities since childhood;

- the employee in other cases was released from work with full or partial retention of wages or without payment in accordance with the legislation of the Russian Federation.

To calculate the average salary of an employee, the following formula is used (clause 9 of Regulation No. 922):

Average earnings = Average daily earnings x Number of days (calendar, working) in the period subject to payment.

1. Average daily earnings for calculating compensation for unused vacation is defined as follows:

And if billing period worked completely by the employee:

Average daily earnings = Salary for the billing period / 12 months. / 29.3 cal. days;

B) if the pay period was not fully worked by the employee or time was excluded from it in accordance with clause 5 of Regulation No. 922:

Average daily earnings = Salary for the billing period / ((29.3 cal days x Number of fully worked calendar months in the billing period) + Number of calendar days in incompletely worked calendar months (calendar month)),

Number of calendar days in an incompletely worked calendar month = 29.3 cal. days / Number of calendar days of this month x Number of calendar days falling within the time worked in this month.

2. Average daily earnings for calculating other compensation payments, which are due to an employee upon reduction, is calculated as follows:

Average daily earnings = Wages for days worked in the billing period / Number of days actually worked during this period.

The procedure for calculating redundancy payments

Wage. In the event of a layoff, wages are calculated in the usual manner in proportion to the time worked in the month of dismissal, taking into account all additional payments and allowances.

Compensation for unused vacation. As noted above, the calculation of this compensation should be based on average daily earnings employee and the number of days of unused vacation.

When determining the number of days of unused vacation, it is necessary to be guided not only by the provisions of the Labor Code of the Russian Federation, but also by the Rules on regular and additional holidays, approved by the USSR NKT on April 30, 1930 N 169, in the part that does not contradict the Labor Code of the Russian Federation, the Letter of the Ministry of Health and Social Development of Russia dated December 7, 2005 N 4334-17, as well as Recommendations<1>, Letters<2>Rostruda. Let's highlight the main points that you should pay attention to:

- every employee who has worked in an institution for at least 5.5 months has the right to receive regular leave;

— regular leave is granted once per working year;

— the employee’s right to the next regular leave for the new working year arises after 5.5 months from the end of the previous working year;

— an employee who has worked a full working year is entitled to full compensation for unused vacation. In this case, the full working year is calculated from the date the employee is hired and is equal to a calendar year (12 months);

- an employee who has worked in an institution for more than one year and is dismissed due to a reduction in staff has the right to receive full compensation for unused vacation for the last working year, provided that he has 5.5 or more months of experience in this period that gives him the right to vacation;

- if the working year is not fully worked out, the vacation days for which compensation must be paid are calculated in proportion to the months worked. In this case, surpluses amounting to less than half a month are excluded from the calculation, and surpluses amounting to at least half a month are rounded up to a full month;

— proportional compensation for unused vacation is calculated based on the calculation of 2.33 days of vacation per month;

— rounding the number of calendar days of unused vacation to whole days should be done not according to the rules of arithmetic, but in favor of the employee.

Severance pay. Calculation of severance pay is made based on the employee’s average daily earnings and the number of working days according to the work schedule in the month following the day of his dismissal (Article 178 of the Labor Code of the Russian Federation).

Since the passage of time periods associated with termination labor relations, begins the next day after the calendar date that determines the end of the employment relationship, the counting of the number of days to be paid must begin from the day following the day of dismissal (Article 14 of the Labor Code of the Russian Federation). For example, an employee was fired on November 14th. The number of days due for payment should be counted from November 15 to December 14.

Average monthly earnings during the period of employment. The average monthly salary is retained by the employee starting from the day following the day of dismissal (Article 14 of the Labor Code of the Russian Federation). Payments stop on the day preceding the day of employment, or on the day of expiration of a two-month period (three months for “northerners”) from the date of dismissal. For the first month of maintaining average earnings for the period of employment, the employee receives severance pay, therefore payment for the second month of the employment period is calculated with the severance pay included (Article 178 of the Labor Code of the Russian Federation).

Additional compensation in the amount of average earnings. This compensation is paid on an equal basis with other payments that are due to an employee due to staff reduction. The amount of additional compensation for early termination of employment relations depends on the time between the actual date of termination of the employment contract and the date of dismissal (Article 178 of the Labor Code of the Russian Federation).

The number of working days to be paid starts from the day following the day of termination of the employment contract and ends with the day of dismissal, which is indicated in the notice of staff reduction (Article 14 of the Labor Code of the Russian Federation).

Example. An employee of a cultural institution received notice of her upcoming dismissal due to staff reduction on 10/17/2014. Official salary female workers - 20,000 rubles, work schedule - 40-hour work week.

For the billing period (from 10/01/2013 to 09/30/2014), which was fully worked out, the following payments were made in favor of the employee:

— salary — 240,000 rubles;

— financial assistance in connection with the death of a family member — 5,000 rubles.

In addition to the basic payments due for staff reduction, the employee must be paid compensation for 28 cal. days She got a new job on November 24, 2014.

We will calculate the payments that an employee is entitled to in connection with dismissal due to staff reduction.

1. Salary from 10/01/2014 to 10/17/2014 will be 11,304.35 rubles. (20,000 / 23 working days x 13 working days).

2. Compensation for unused vacation will be calculated as follows.

The average daily earnings will be 682.59 rubles. (RUB 240,000 / 12 months / 29.3 cal days).

A one-time bonus by March 8 and financial assistance in connection with the death of a family member are not taken into account when calculating compensation, since they do not relate to wages (clause 3 of Regulation No. 922).

Compensation for unused vacation will be equal to RUB 19,112.52. (RUB 682.59 x 28 cal days).

The billing period (from 10/01/2013 to 09/30/2014) has been fully worked out, with 248 workers. days (By production calendar), therefore the average daily earnings will be 967.74 rubles. (RUB 240,000 / 248 working days).

The paid period is 19 working days. days (from 10/18/2014 to 11/17/2014).

The amount of severance pay will be 18,387.06 rubles. (967.74 RUR x 19 working days).

4. Average daily earnings for the period of employment are calculated in the same manner as when calculating severance pay.

During this period there are 23 working hours. days, for 19 of which severance pay was paid, so 4 workers are subject to payment. days

Average earnings for the period of employment will be 3870.96 rubles. (967.74 RUR x 4 working days).

Personal income tax and insurance premiums from reduction payments

Personal income tax. Wages for hours actually worked, which are paid upon dismissal, as well as compensation for unused vacation, are subject to personal income tax based on paragraphs. 6 clause 1 art. 208, paragraph 1, art. 209, paragraph 1, art. 210 and paragraph 3 of Art. 217 Tax Code of the Russian Federation.

Severance pay, average monthly earnings for the period of employment and compensation for early termination of an employment contract, paid in an amount not exceeding three times the amount (six times for “northerners”) of the average monthly earnings are not subject to personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation, Letters of the Ministry of Finance of Russia dated 05/15/2013 N 03-04-05/16928, dated 07/08/2013 N 03-04-05/26273).

Insurance premiums. Wages for the month of dismissal and compensation for unused vacation are subject to insurance contributions to the Pension Fund, Social Insurance Fund and Federal Compulsory Medical Insurance Fund, as well as contributions in case of injury to general procedure(Part 1, Article 7 of Federal Law No. 212-FZ<3>, pp. “d” clause 2, part 1, art. 9 of Federal Law N 212-FZ, paragraphs. 2 p. 1 art. 20.2 of Federal Law N 125-FZ<4>).

As for the taxation of other compensation payments for layoffs with insurance contributions, in 2014 they are not subject to taxation in full, and from 2015 they will be subject to insurance contributions in excess of three times the amount (six times for “northerners”) of average monthly earnings ( paragraph “a”, paragraph 3, article 2, paragraph “a”, paragraph 1, article 5, article 6 of the Federal Law of June 28, 2014 N 188-FZ).

So, let's highlight the main thing. An employee upon termination of an employment contract due to a reduction in staff (numbers) is entitled to the following payments:

- salary for the month of dismissal;

— monetary compensation for all unused vacations;

— severance pay in the amount of average monthly earnings;

— average monthly earnings for the period of employment;

— additional compensation in the amount of average earnings (in case of early termination of the employment contract before the expiration of the two-month notice period).

Of these payments, only wages and compensation for unused vacation are fully subject to personal income tax and insurance contributions. Rest compensation payments are not subject to personal income tax and insurance premiums. At the same time, we draw your attention to the fact that in 2015 the amounts of payments in the form of severance pay and average monthly earnings for the period of employment will be subject to insurance contributions in a portion exceeding in general three times the amount (six times for “northerners”) of the average monthly earnings.

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