Is it possible not to sign a notice of layoff

Algorithm of actions if an employee refuses to sign a layoff notice

In a difficult economic situation, an employer often has to decide on reducing the number or staff of an organization.

In this case, it is mandatory to send a notice to employees about the planned elimination of their workplace.

And here a situation may arise when an employee refuses to sign this document. So let's try to figure this out.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

If you want to find out how to solve your particular problem, just call, it’s fast and free!

New turnover procedure

In 2020, the fiscal authority made changes to the procedure for sending electronic documentation designed to regulate the powers of tax inspectorate employees in relation to payers of taxes and fees.

The provisions of Order No. ММВ-7-2/ [email protected] indicate which documents can be sent electronically to the tax office. According to paragraph 5.1 of Article 23 of the tax legislation, from 2020, when filing reports electronically, the taxpayer is required to submit a receipt for acceptance of reports within 6 days from the date of sending notifications by Federal Tax Service employees.
Article 23. Responsibilities of taxpayers (payers of fees, payers of insurance premiums)

Can an employee refuse to sign a notice of upcoming layoff?

So, let's try to figure out the main reasons why an employee may refuse to sign a notice:

A banal desire to “annoy” the employer. Of course, the employee understands that even in this situation the employer will find a way out and fire him anyway, but in revenge he finally wants to fray the nerves of his former employer.
The notice contains errors and irregularities. This reason is more weighty, and the employee has every right not to sign an incorrectly drawn up document.

How to confirm refusal to sign a notice, the meaning of the act

If, for some personal reason, the employee refuses to sign the notice, it is necessary to draw up a report about this as confirmation, but try to discuss this with the employee in advance, pointing out his rights in this case. The act indicates the fact of refusal and, if possible, the reason according to the employee.

Important! The act is drawn up precisely at the moment of refusal to sign the notification; accordingly, it is illegal to sign it retroactively.

During the preparation of this document, the presence of the refusenik is required, as well as two witnesses; they can be employees from different departments of the enterprise.

The meaning of the act is that even if the employee refuses to sign, the employer’s actions to reduce staff cannot be terminated. In turn, the management of the organization, having drawn up an act, has a document confirming that, for its part, it has taken all measures to notify the employee. And in case of disputes and employees going to court, it will help in resolving disputes and disagreements that have arisen.

Conditions of notification and methods of serving a document

The main condition that must be met when sending a notice is that the employee familiarizes himself with it no later than 2 months before the set date of layoff. In this case, it is very important to notify each employee personally and ensure that he signs the document.

Another important condition is the mandatory preparation of such a document in writing with all the necessary data.

To date, the legislation does not contain any special requirements regarding the form and method in which this notification should be conveyed to the employee.

Thus, the employer can independently choose the method of delivering this document to the employee. So, let's look at possible ways to send notice of a layoff:

Hand it personally to the employee.
Sending by registered mail. In this case, the person’s signature on the certificate of receipt of the letter will act as proof that he was informed in a timely manner of the upcoming dismissal.
Read also: Starting June 12, the requirements for drawing up an employment contract and the standards for issuing soap will change. Employment contract norms for issuing detergents
You can use courier delivery of the notification. The employee will be required to sign the courier's receipt indicating that they have received the letter.

Only if there are supporting documents is it considered that the employee is informed about the layoff. Additionally, it should be noted that if the employee is in the hospital or at home, the employer can send several people to him with notice of dismissal.

How to notify a counterparty of a unilateral refusal to perform a contract

The article invites the reader to pay attention to the procedure for properly notifying the supplier (contractor, performer) of the customer’s unilateral refusal to fulfill the contract.

Issues of the customer’s unilateral refusal to fulfill the contract have been covered more than once in the magazine Progoszakaz.rf. Mainly the discussion was about the grounds for unilateral refusal to fulfill certain types of obligations <1>. In the same article, the reader is invited to pay attention to the procedure for properly notifying the supplier (contractor, performer) of the customer’s unilateral refusal to fulfill the contract.

——————————— <1> For more information about this, see the publications: Shakhova Yu.N. The customer’s unilateral refusal to fulfill the supply contract on the grounds provided for in Art. 523 Civil Code of the Russian Federation // Progoszakaz.rf. 2020. N 6. P. 68 - 75; Gurin O.Yu. Grounds for the customer’s unilateral refusal to execute a contract for work // Progoszakaz.rf. 2020. N 11. P. 44 - 55; Shakhova Yu.N., Romanenko A.A. Unilateral refusal of the customer to fulfill the contract for the provision of services // Progoszakaz.rf. 2020. N 12. P. 73 - 80; Gurin O.Yu. On what basis to refuse to fulfill a contract if the delivered goods do not correspond to it // Progoszakaz.rf. 2020. N 1. P. 47 - 61.

Compliance with this procedure on the part of the customer will allow him to avoid administrative liability provided for in Part 6 of Art. 7.32 of the Code of Administrative Offenses of the Russian Federation, and ensure that information about the supplier (contractor, performer) is included in the register of unscrupulous suppliers <2> (hereinafter referred to as the RNP). For suppliers (contractors, performers), knowledge of the specifics of the procedure that must be performed in relation to them by the customer is also very important: if you recognize a violation of this procedure, consider that you have found an excellent “clue” to avoid inclusion in the RNP. ——————————— <2> See letter of the FAS Russia dated March 28, 2014 N IA/11604/14 “On the consideration of applications for inclusion in the register of unscrupulous suppliers of information about dishonest suppliers (contractors, performers), contracts with which are terminated in the event of the customer’s unilateral refusal to fulfill the contract due to a significant violation of the terms of the contracts.”

The procedure for properly notifying suppliers (contractors, performers) of a unilateral refusal to fulfill a contract is set out in Part 12 of Art. 95 of Law 44-FZ. This rule states that the customer’s decision to unilaterally refuse to fulfill the contract: 1) no later than within three working days from the date of adoption of this decision is posted in the Unified Information System; 2) sent to the supplier (contractor, performer) by registered mail with return receipt requested to the address of the supplier (contractor, performer) specified in the contract, as well as by telegram or by fax, or by email, or using other means of communication and delivery, ensuring that such notice is recorded and the customer receives confirmation of its delivery to the supplier (contractor, performer). Fulfillment by the customer of the requirements of Part 12 of Art. 95 of Law 44-FZ is considered proper notification to the supplier (contractor, performer) of a unilateral refusal to fulfill the contract. The date of such proper notification is the date the customer receives confirmation of delivery of the specified notice to the supplier (contractor, performer) or the date the customer receives information about the absence of the supplier (contractor, performer) at his address specified in the contract. If it is impossible to obtain the specified confirmation or information, the date of such proper notification is recognized as the date thirty days from the date of posting the customer’s decision on unilateral refusal to perform the contract in the Unified Information System. Turning to the judicial practice of applying this rule, we will see that in a number of cases it is interpreted differently.

Placing the customer's decision on unilateral refusal to fulfill the contract in the Unified Information System

Customers should remember that there is a special section in the UIS designed to accommodate a decision on unilateral refusal to fulfill a contract. This is the section “Additional information about contracts and procurement” <3>. Placing the relevant information in another section of the UIS will not in itself entail the invalidity of a unilateral refusal to fulfill the contract, but in order to prove this, the customer may need to go through more than one authority. ——————————— <3> See clause 4.16.3 of the EIS User Guide (version 9.0). URL: https://zakupki.gov.ru/epz/main/public/download/downloadDocument.html?id=28555. The placement of information about the customer’s unilateral refusal to fulfill the contract in this section of the EIS is recognized as proper fulfillment of the requirements of Part 12 of Art. 95 of Law No. 44-FZ: see Resolution of the Thirteenth AAC dated March 28, 2018 in case No. A56-47646/2017, decision of the Administrative Court of the Republic of North Ossetia-Alania dated September 20, 2017 in case No. A61-4036/16.

Example. The customer published the decision on unilateral refusal to perform the contract in the UIS section “Information on the execution (termination) of the contract.” The control body saw in the customer’s actions a violation of Part 12 of Art. 95 of Law No. 44-FZ. Legal assessment of the court: information from the UIS section “Information on the execution (termination) of a contract” is publicly available, which meets the purposes of placing such information in the UIS: ensuring openness of public procurement and the possibility of exercising proper control in the field of procurement. Placement by the customer of a decision on unilateral refusal to execute a contract in a section of the UIS other than the section recommended by the UIS User Guide cannot serve as a basis for concluding that the customer has failed to comply with the provisions of Part 12 of Art. 95 of Law No. 44-FZ. The “UIS User's Guide” is not a regulatory legal act, nor is it an act, non-compliance with which entails the consequences of recognizing a violation of the procedure for unilateral termination of a contract <4>. ——————————— <4> Resolution of the Federal Antimonopoly Service of the North-Western District dated January 18, 2018 N F07-12003/2017 in case N A42-2484/2016.

There are cases when the customer did not place the decision on unilateral refusal to fulfill the contract in the Unified Information System at all. On this matter, the Supreme Court of the Russian Federation spoke as follows: “Failure by the customer to perform all actions provided for in Part 12 of Art. 95 of Law N 44-FZ, does not indicate the absence of proper notification if it is proven that the notice of the customer’s unilateral refusal to fulfill the contract was delivered to the contractor” <5>. ——————————— <5> Clause 16 of the Review of judicial practice of application of the legislation of the Russian Federation on the contract system in the field of procurement of goods, works, services to meet state and municipal needs, approved. By the Presidium of the Supreme Court of the Russian Federation on June 28, 2017.

An example given by the Supreme Court of the Russian Federation. The customer notified the supplier of his unilateral refusal to fulfill the contract by sending a registered letter with return receipt requested, as well as by e-mail (delivery of the decision to the supplier’s representative was documented). The supplier challenged its inclusion in the RNP, citing the fact that the customer violated the procedure for unilateral refusal to perform the contract, provided for in Part 12 of Art. 95 of Law N 44-FZ, without posting the decision on unilateral refusal in the Unified Information System within three working days from the date of its adoption. Legal position of the Supreme Court of the Russian Federation: for civil consequences to arise in the form of termination of the contract, it is sufficient to deliver to the contractor a message from the customer about refusal to fulfill the contract using any means of communication and delivery. The posting of relevant information on the website is necessary to ensure openness and transparency of the functioning of public procurement and is established primarily for public purposes to exercise proper control in the field of procurement. Thus, a supplier who has received from the customer a notice of unilateral refusal to perform a government contract by mail does not have the right to subsequently declare that the customer has not performed all actions provided for in Part 12 of Art. 95 of Law No. 44-FZ. According to Part 13 of Art. 95 of Law N 44-FZ, the contract is considered terminated after ten days from the moment when the first of the legally significant messages is considered delivered.

Of course, the legal position of the Supreme Court of the Russian Federation will have an impact on the formation of uniform law enforcement practice on the issue under consideration.

Delivery of the customer’s decision on unilateral refusal to fulfill the contract in person against signature (on purpose) to the legal representative of the supplier (contractor, performer)

Control authorities do not always consider this method of notification sufficient, as a result of which customers have to prove their case in the courts. Example 1. The customer decided to unilaterally refuse to execute a government contract on December 27, 2016, placing it in the Unified Information System on the same day. On 01/09/2017, the specified decision was delivered to the deputy director of the supplier organization by courier. The supplier did not deny this fact. The antimonopoly authority came to the conclusion that the customer did not comply with the procedure for terminating the contract, but the court did not agree with this conclusion. The delivery of the decision to the executor of the contract provided the latter with the proper opportunity to eliminate the violations committed in accordance with Part 14 of Art. 95 Law No. 44-FZ <6>. ——————————— <6> Resolution of the Federal Antimonopoly Service of the North-Western District dated 02/20/2018 N F07-14839/2017 in case N A56-23404/2017.

Example 2. The customer decided to unilaterally refuse to fulfill the contract and on the same day handed over the specified decision to the general director of the supplier organization, about which the latter put his signature on the notice. The antimonopoly authority refused to allow the customer to include information about the supplier in the RNP due to the lack of sufficient information about the proper notification of the supplier about the customer’s unilateral refusal to perform the contract. However, the court indicated that, in accordance with the provisions of Law N 44-FZ, the decision on unilateral refusal to fulfill the contract must be sent to the counterparty in the most expeditious way. In this case, the method of communication or delivery can be any. In this case, the notification was delivered to the counterparty in person, which is confirmed by the signature of the general director of the supplier organization on the customer’s copy. Consequently, the requirements of Part 12 of Art. 95 of Law N 44-FZ were complied with by the customer <7>. ——————————— <7> Decision of the Court of Justice of the city of St. Petersburg and the Leningrad region dated May 11, 2018 in case No. A56-33627/2018. Similar conclusions were made in the decisions of the Magadan Region Arbitration Court dated February 21, 2018 in case No. A37-2452/2017, and the Volgograd Region Arbitration Court decisions dated November 9, 2017 in case No. A12-32425/2017.

When handing over a decision on unilateral refusal to perform a contract on purpose, the customer must know for sure that the recipient of the correspondence is the legal representative of the supplier (contractor, performer). Otherwise, the decision to terminate a government contract unilaterally may be considered illegal. Example. As evidence of the direction of the decision on unilateral refusal to perform the contract, the customer presented to the court a decision to terminate the state contract unilaterally with Fr. In court, the supplier argued that A.V. Fursik is not his employee. The court concluded that the customer did not provide unconditional evidence of delivery of the decision on unilateral refusal to perform the contract to the authorized representative of the supplier, taking into account the evidence provided by the latter of the absence of A.V. Fursika in his state. Since the customer did not provide other evidence confirming the proper notification of the supplier about the unilateral termination of the contract, the unilateral refusal was declared invalid <8>. ——————————— <8> Resolution of the Third AAS dated 04/09/2018 in case No. A33-29350/2017. The judicial acts in this case were left unchanged by the Supreme Court of the Russian Federation. This Determination of the Supreme Court of the Russian Federation dated November 20, 2018 N 302-ES18-16729 is “refused” (the case was not considered by the Judicial Collegium for Economic Disputes).

Sending the customer's decision to unilaterally refuse to perform the contract using email

This is perhaps one of the most controversial and controversial methods of notification. According to some judicial authorities, sending a notice via electronic communication does not confirm the fact of its delivery to the supplier, because The report on sending an e-mail message in itself does not allow us to reliably establish that it was the customer’s decision to unilaterally refuse to perform the contract that was sent to the contractor. In addition, it is impossible to establish from this report the fact of receipt of notice of unilateral termination of the contract by the supplier <9>. ——————————— <9> Resolution of the First AAS dated 06.06.2016 in case No. A43-31783/2015.

And what definitely cannot be done is to assume that sending a letter by e-mail frees the customer from the need to send a decision on unilateral refusal to perform the contract by registered mail with notification. Example. Having decided to unilaterally terminate the contract, the customer did not send it to the contract executor by registered mail with return receipt requested, limiting himself only to additional methods of notifying the counterparty (sending a message by e-mail, as well as by shipping via DHL Express). The antimonopoly authority considered the procedure for terminating the contract to be violated and, therefore, refused to allow the customer to include information about the supplier in the RNP. The courts agreed with this, indicating that the customer did not send the counterparty a decision on unilateral refusal to perform the contract in the main way specified in Law N 44-FZ (by registered mail). It follows from the provisions of Law N 44-FZ that in order to establish the moment of termination of the contract, it is necessary to know the date the customer received confirmation of delivery of the notice to the contract executor. In this case, the decision to unilaterally refuse to perform the contract was sent to the counterparty through a means of communication and delivery that did not ensure that the notification of delivery was recorded and that the customer received confirmation of its delivery <10>. ——————————— <10> See Resolutions of the Fourteenth AAS dated 03.03.2015 N 14AP-211/2015 in case N A05-12408/2014, dated 03.03.2015 N 14AP-213/2015 in case N A05-12163/2014.

However, the opposite approach is also encountered in practice. Example of argumentation. Failure by the customer to perform all actions provided for in Part 12 of Art. 95 of Law N 44-FZ, does not indicate the absence of proper notification if it is proven that the notice of the customer’s unilateral refusal to perform the contract was delivered to the contractor <11>. ——————————— <11> The court referred to paragraph 16, already quoted by us, of the Review of judicial practice of application of the legislation of the Russian Federation on the contract system in the field of procurement of goods, works, services to meet state and municipal needs, approved by the Presidium of the Supreme Courts of the Russian Federation 06/28/2017.

Concluding that the customer violated the provisions of Part 12 of Art. 95 of Law N 44-FZ, the lower courts did not evaluate the customer’s arguments that the refusal of the government contract was sent to the contractor by e-mail on December 19, 2016 and December 20, 2016 and was posted by the customer on the official website of the Unified Information System; the notification was received by the contractor on December 19, 2016, which is confirmed by the contractor’s written response dated December 20, 2016 <12>. ——————————— <12> Resolution of the Federal Antimonopoly Service of the North-Western District dated December 21, 2017 in case No. A56-2450/2017.

Mistakes made when notifying a supplier (contractor, performer) of a unilateral refusal to fulfill a contract

In each individual case, the court gives a legal assessment of the mistakes made by the customer (and not only by him) <13>. ——————————— <13> An example of placing information in a UIS section different from that specified in the user manual was discussed just above.

Example. The courts have established that when performing the procedure for unilaterally terminating a contract, the requirements of Part 12 of Art. 95 of Law N 44-FZ by the customer are not properly implemented and observed. The OFAS Commission considered that the appropriate notification of the customer’s unilateral refusal to fulfill the contract is the institution sending the relevant information via SMS message to the phone number +79887040778 and to the email address. However, the court found that sending messages to the specified phone number and email address is not in an appropriate way to inform the counterparty. In the contract, the last telephone number indicated was +79283155155, and in the UIS - telephone number +79187877670 and email [email protected] The case materials do not contain evidence of sending a notice of unilateral refusal to fulfill the contract to the specified telephone numbers and email addresses, as well as in other ways, making it possible to reliably establish the direction of the decision on the customer’s unilateral refusal to fulfill the contract to the supplier. Thus, the procedure for notifying the counterparty of the customer’s unilateral refusal to fulfill the contract was not followed, and therefore the antimonopoly authority had no legal basis for considering the merits of the customer’s application to include information about the supplier in the RNP <14>. ——————————— <14> Resolution of the Federal Antimonopoly Service of the Central District dated July 11, 2018 in case No. A83-12423/2017.

In some cases, mistakes that subsequently lead to the conclusion that the contract termination procedure was not followed are made... by postal workers. Example. The customer's decision to unilaterally refuse to fulfill the contract was sent to the supplier by registered mail with notification to the address specified in the contract. The antimonopoly authority came to the conclusion that the customer did not comply with the procedure for terminating the contract, because the decision to unilaterally refuse to perform the contract was sent by registered mail to Komplekt Stroy LLC, while the correct name of the supplier is KomplitStroy LLC. Thus, ComplitStroy LLC was not properly notified by the customer of the unilateral refusal to fulfill the contract, and therefore information about it was not included in the RNP. Fortunately for the customer, the court did not agree with the antimonopoly authority, pointing out that the mere mistake of the postal worker in the name of the organization, while correctly indicating the name of the recipient and the address of the recipient on the postal envelope, cannot serve as a basis for concluding that the customer failed to take steps to notify the supplier of a unilateral termination of the contract by registered mail. According to the court, the antimonopoly authority approached the consideration of information about the supplier’s dishonesty formally, making its decision only on the basis of an erroneous indication of the addressee’s name in the postal receipt and without examining the issue of the presence or absence of grounds for including information about KomplitStroy LLC in the RNP properly < 15>. ——————————— <15> Resolution of the Federal Antimonopoly Service of the Ural District dated October 19, 2017 in case No. A60-979/2017.

In the above case, the court received a critical assessment and the antimonopoly authority asserted that the customer is obliged to send the supplier a decision on unilateral refusal to fulfill the contract by all means listed in Part 12 of Art. 95 of Law N 44-FZ (by registered mail with return receipt requested to the supplier’s address specified in the contract, as well as additionally by telegram or by fax, or by email, or using other means of communication and delivery that ensure recording of such notification and receipt by the customer of confirmation of its delivery to the supplier), and failure to use at least one of the methods entails an unconditional conclusion that the supplier was not notified of termination of the contract. The court indicated that Part 12 of Art. 95 of Law N 44-FZ imposes on the customer the obligation to place a decision on unilateral refusal to perform a contract in the Unified Information System and send it to the supplier (contractor, performer) by registered mail with notification. The remaining methods proposed by the legislator for delivering a decision on unilateral refusal to fulfill a contract to the supplier are optional <16>. ——————————— <16> Compare with the position specified in the decision of the Autonomous Court of the Tomsk region dated January 15, 2018 in case No. A67-7788/2017: “Within the meaning of this norm (Part 12 of Article 95 of the Law N-44), the legislator has made it mandatory to post a decision on refusal on the information network, as well as send such a decision to the supplier (performer) by registered mail with return receipt requested. The remaining methods proposed by the legislator for delivering a decision on unilateral refusal to fulfill a contract are optional.”

Concluding the article, we can draw the following conclusions about the features of proper notification: 1. The customer’s decision on unilateral refusal to fulfill the contract must be posted in the UIS section “Additional information about contracts, procurement” on the official website zakupki.gov.ru. After it comes into force, that is, from the date of termination of the contract, in accordance with Part 3 of Art. 103 of Law N 44-FZ, it must be placed within five working days in the register of contracts in the section “Information on the execution (termination) of the contract.” 2. Delivery of the customer’s decision on unilateral refusal to fulfill the contract in person against signature (on purpose) to the legal representative of the supplier (contractor, performer) complies with the requirements of Law N 44-FZ. 3. The customer’s decision to unilaterally refuse to perform the contract must be sent by email with a notification mark, as well as to the email address specified in the contract and in the contract card in the Unified Information System. 4. It is necessary to send the customer’s decision to unilaterally refuse to fulfill the contract via SMS message to the phone numbers specified in the contract and in the contract card in the Unified Information System. 5. When sending a registered letter with notification to the address of the supplier (contractor, performer) specified in the contract, it is necessary to monitor the correct spelling of the name of the organization. 6. It is necessary to comply with the deadlines provided for in Parts 12, 13 of Art. 95 of Law No. 44-FZ, taking into account the effect of Art. Art. 191 and 193 of the Civil Code of the Russian Federation <17>. ——————————— <17> See letter of the FAS Russia dated March 14, 2018 N RP/16764/18 “On consideration of the appeal.”

Compliance with these simple rules will allow customers to properly fulfill their obligations under the legislation on the contract system in the field of procurement.

Blintsov D.A. How to notify the counterparty of a unilateral refusal to fulfill a contract // Progoszakaz.rf. 2020. N 2. P. 48 - 57.

The material was prepared using SPS ConsultantPlus.

Action plan for the employer in case of refusal

The employer should remember that, without having in hand documents proving that the employee was aware of the dismissal, he does not have the right to lay him off, since otherwise the law will be violated.

Evidence that an employee has received notice of layoffs may include:

signature on the document itself;
signature on the courier receipt indicating that the person received the document;
act of refusal to sign the notification.

So, you can get out of this situation as follows:

First, you need to talk with the employee and try to find out the reasons for the refusal to sign the notice. If the employee’s arguments are compelling, then the employer should comply with the employee’s demands (the notification was incorrectly issued, violations were committed, etc.).
If an employee simply does not want to sign in retaliation, hoping that thereby he will be left in his previous position, then it is necessary to draw up an act of refusal to sign the notice of layoff.

Termination procedure

According to the Civil Code of the Russian Federation, unilateral refusal to fulfill an agreement is regulated primarily by the agreement itself.

The termination procedure can be described in the text of the agreement; the parties can enter into the clauses general wording about the right to refuse, without introducing any specifics in this regard.

The time periods for the procedure are different. They are either tied to specific circumstances agreed upon by the parties in advance, or the contract is terminated automatically after the appropriate expression of will. A telegram may be sent or actions may be taken indicating a refusal.

From what moment is the agreement considered terminated? As soon as the other party receives notice or under other circumstances, depending on the terms of the agreement. It must be said that clause 1 of Art. 450 of the Civil Code of the Russian Federation is quite flexible and gives some freedom to establish your own rules.

How to draw up an act correctly?

The HR department is responsible for drawing up the refusal act. In order for it to be lawful, the text of the notification is read aloud to the employee in the presence of at least two witnesses.

Then they proceed directly to the compilation procedure itself. The employee should be required to write an explanatory note about the reasons for not signing the notice. If the employee also refuses to do this, then this should be stated in the act.

It should be noted that both the notification itself and the act of refusal to sign it do not have a standard form. As a rule, these documents are of any form, but must reflect all the necessary components.

So, let's look in more detail at the data that needs to be recorded in the act:

all details of the employee and employer;
the reason for the reduction with reference to a specific norm of the Labor Code of the Russian Federation;
date of reduction;
a list of available vacancies that are available at the enterprise;
signatures of the HR department;
signatures of witnesses;
signature of the head of the organization.

Fear No. 5. Refuse the applicant

You need to approve new employees with three supervisors. This makes it difficult to find a new employee that everyone will like. As a result, you, as a personnel officer, refuse worthy candidates. After lengthy interviews, the applicant becomes upset and lashes out at you. You are afraid that the candidate will write a complaint or ask for a reasoned refusal to hire.

Why does it arise? You present the candidate to management. Therefore, in case of failure, a feeling of guilt arises towards the applicants. You were given responsibility for new employees, but were not given the right to vote for them. You are communicating a decision that you did not make. And in the eyes of the candidate, you are guilty of this. Managers do not explain why an applicant should be rejected. Ultimately, you are not responsible for your decisions.

How to fight. Change your personal stance towards the situation. Mentally build a glass wall between you and the applicant. This way you will more calmly perceive the candidate’s emotions and not transfer them onto yourself. Agree with the applicant. Note in the conversation that you understand his offense and the candidate’s reaction - a logical result of the fact that the time devoted to the company did not bring positive results.

Dismissal procedure

After the act has been drawn up, the employer can safely begin to formalize the standard procedure for laying off an employee. Here are a few steps to follow:

development of an order for the dismissal of a specific employee;
based on the completed order, entries are made in the work book and personal card;
the accounting department makes all the necessary calculations;
the employee is issued documents.

Thus, it can be noted that refusal to sign the notice is not a catastrophic situation for the employer. The main thing is to approach the problem wisely, and then you can fire the “rebellious” employee without any problems, while avoiding litigation.

And even if such an employee files a lawsuit, the employer will be able to prove the legality of his actions without any problems.

Order of reduction

According to the Labor Code (Labor Code) of the Russian Federation, the following procedure for reducing employees is determined.

The first thing the employer needs to do is issue a justified order, indicating that there will be layoffs, and also motivate his decision (for example, production optimization).
Prepare a list of citizens whose positions (jobs) will be reduced, and instruct the accounting department to prepare the funds necessary for payments (all existing debt, severance pay in the amount of two average salaries).
Notify all people being laid off that in two months their employment agreements will be terminated (they will stop working at this enterprise), and also offer them other vacancies.
After two months, if citizens do not agree with the vacancies, dismiss them and issue them work books, as well as make all required payments.

My own lawyer

If there are several such employees, then, according to the law, the following categories have the right to retain their positions:

- workers who support two or more disabled family members;
- workers whose earnings are the only source of income for the whole family;
- employees who were injured or have an occupational disease while working at this enterprise;
— disabled people of the Great Patriotic War and disabled people who took part in hostilities to defend the state;
- employees who improve their qualifications at the place of work in the direction of the employer.

This is interesting: Legal advice - The work book was not returned

A collective agreement drawn up at an enterprise or organization may indicate an expanded list of categories of workers who have a preferential right to remain at work in the event of staff reductions.

What to do if a person does not sign the notice

We have already figured out that any dismissed person has the right, and not the obligation, to sign a notice.

Therefore, if the employee does not sign this document, the employer should not panic, but simply needs to formalize the refusal in a legally competent manner.

This must be done according to the following algorithm:

First you need to find out the employee's motive. There are various situations in which a person does not want to do this. Therefore, there is no need to conflict, but it is better to select a detailed explanation from him, in which to describe the motive. It may turn out to be justified, and the employer will understand that his actions will be unlawful.
If a person does not want to give any written explanations, the employer cannot force him to take these actions. He must wait two working days, then invite the employee again and invite him to sign.
If a refusal occurs again, then the employer is obliged to invite two employees who, with their signatures, will record the fact that a particular person refused to sign the notification. To record this action, you must write “employee full name” in the notification. refused to sign the document about the reduction from such and such a number.” Under this phrase the positions, full name and full name are indicated. witnesses, and they put their signatures and date.

Therefore, the answer to the question: is it possible not to sign notices of layoffs, is clear - it is possible, but this will not be a basis for keeping a person at work.

It is drawn up by the employee who carried out the procedure for familiarizing himself with the upcoming dismissal. The act also indicates the invited witnesses, and a brief reason for the refusal is written in the signature of the person being reduced. If the reasons are not given by the latter, the phrase “explain the reasons for the refusal to sign in the notification, employee full name” is written. refused."

Having completed this algorithm, the owner of the enterprise or the body authorized by him will do everything according to the law, and there will be no claims against him.

Employers should be aware that employees do not have to sign papers about their upcoming layoff. In this case, this fact must be recorded with the help of two witnesses, making a note in the warning, or formalize this by drawing up a special act of refusal.

Rules for forming an act

The act must be written precisely at the moment when the refusal to sign on the notification occurred (i.e., it is unacceptable to create it “retroactively”). When drawing up the act, several people must be present: the author of the document (usually a representative of the management team of the enterprise or the head of a structural unit), as well as witnesses of at least two people (it is better if these are employees from different departments).

What payments are due?

It is more economically profitable for the employer if the employee leaves of his own free will. However, if this wording is not indicated in the application written by the dismissed employee, payments are accrued in full. They are formed:

from the official salary accrued for the days actually worked in the last working month;
from compensation provided by law for vacation days not yet used in the current year;
from additional compensation payments for all days remaining before the date of dismissal announced in the management notice (accrued based on the average salary);
from payment for months of forced unemployment, allotted by law for the search for a new job (usually this takes one or two months).

As for payment for the third month following dismissal, wages will be accrued if the employee is registered with the local employment center. Moreover, you must register within two weeks from the date of receipt of the payment.

Reduction and position offer

Before laying off workers and issuing an order, it will be necessary to first determine, with the help of the commission, the availability of benefits and preferential rights for employees. This is necessary to ensure that there are no violations regarding the layoff procedure, taking into account all labor rights.

Reduction order:

making a decision on a reduction of a certain type based on established factors;
development of a reduction plan by the commission or responsible person. Here it is required, based on all the benefits and privileges of employees, to compile a list of those being laid off;
After the order is issued, all organizations and employees who are being laid off are notified. The trade union, based on the data provided, must agree to the reduction of its members;
Along with the notification, the employee must receive a list of vacancies provided to him by priority right. Also, vacancies can be provided during the entire period before the reduction, including on the last working day, if one of the positions in the new staffing table has become vacant;

Sample order to reduce the number of employees

if he agrees, the employee must write an application for transfer to the provided position, after which he is transferred and does not receive redundancy payments, since he does not lose his job;
if you refuse a position, you will need to issue a written refusal, which allows you to dismiss the employee, including early;
within the prescribed period, an employee who has refused all available vacancies is laid off with full payment of all funds established by law and other factors, for example, additional agreements or a collective agreement.

Compliance with the rules regarding notice of redundancy

Now the law provides for an unlimited number of grounds for expulsion, plus, there is even an officially established procedure for several reasons at once.
On the one hand, this is good, since you can get rid of any unnecessary employee. On the other hand, on the contrary, there should be a way around such measures if the boss is sensible and does not want to fire staff due to a higher order. So, to begin with, it is worth noting that a dismissal issued by a removal order is significantly different from a dismissal clause due to a transfer. Remember, the simplest change in the names of any positions in the regular staffing table, as a rule, cannot be considered a direct basis for reduction or expulsion. In any case, if layoffs of employees are planned, the boss must personally warn each employee, only in writing, and only against signature.

At the same time, notice of dismissal due to staff reduction will be considered complied with only when an employee of the enterprise independently signs a proper statement that he has been notified of the upcoming dismissal. In addition, the application, among other things, must be written by the employee himself. Or, the employee must sign directly on the handed order from his superiors. In this case, a copy should remain at the disposal of the authorities.

Another variant of the norm on the part of the authorities is to provide on their part a special document or a journal, where the fact of notification of expulsion can also be reflected under the signature.

Is it worth signing a notice of staff reduction?

Alternatively, having received a layoff order, an employee may think about whether to sign a notice of staff reduction; to do this, you need to pay attention to the information contained in the document.

Such information includes the date confirming the preparation of the document, the presence of all the details of the company or company indicated on the bank form. In addition, vacant positions must be offered to replace the reduced ones - this is considered a mandatory condition under the Labor Code.

In addition, if the “Order” contained the details of the Order (that is, its date and the corresponding number), according to which the employee is informed about the upcoming reduction in connection with the dismissal of staff, he is simply obliged to request in writing from his employer to provide him with a notarized a copy of this Order.

What happens if you don’t sign the redundancy notice?

Without a real signature of the head of the enterprise, as well as in the absence of a date of direct familiarization with the document, such a “notification of dismissal associated with a reduction in number” by an employee should not be signed!
The employee also has the right to refuse to sign that he was warned about the upcoming deduction. What happens if you don’t sign the redundancy notice? Actually, nothing! In this case, the employer is obliged, in the presence of several witnesses, to invite his employee to state in writing the existing reasons for refusing to directly sign the relevant document. If the employee refuses even this, then the boss is obliged to draw up a special act, with the involvement of witnesses, which reflects the fact of warning the employee about the upcoming dismissal, plus, on top of everything, his refusal to sign such an “Order”.

Lawyers' answers (3)

If you are made redundant, you must indeed be offered other vacancies, of which you must be notified in writing. However, we can only talk about proposals from the administration - it’s up to you to refuse or not; you can sign the refusal only if you are satisfied with it. For this purpose, they must offer you available vacancies so that you can make a choice. The reduction procedure is regulated by the Labor Code:

Article 179. Preferential right to remain at work when the number or staff of employees is reduced (as amended by Federal Law of June 30, 2006 N 90-FZ When the number or staff of employees is reduced, the preferential right to remain at work is granted to employees with higher labor productivity and qualifications .(as amended by Federal Law No. 90-FZ of June 30, 2006) If labor productivity and qualifications are equal, preference in remaining at work is given to: family - if there are two or more dependents (disabled family members who are fully supported by the employee or receive assistance, which is for them a permanent and main source of livelihood); persons in whose family there are no other workers with independent earnings; workers who received a work injury or occupational disease while working for this employer; disabled people of the Great Patriotic War and disabled combat veterans actions to protect the Fatherland; employees who improve their skills at the direction of the employer without interruption from work. (as amended. Federal Law dated June 30, 2006 N 90-FZ) The collective agreement may provide for other categories of workers who enjoy a preferential right to remain at work with equal labor productivity and qualifications. (as amended by Federal Law dated June 30, 2006 N 90-FZ Article 180. Guarantees and compensation to employees in the event of liquidation of an organization, reduction of the number or staff of employees. When carrying out measures to reduce the number or staff of employees of an organization, the employer is obliged to offer the employee another available job (vacant position) in accordance with part three of Article 81 of this Code. (as amended by the Federal Law dated 06/30/2006 N 90-FZ) Employees are warned by the employer personally and against signature of the upcoming dismissal due to the liquidation of the organization, reduction in the number or staff of the organization's employees at least two months before the dismissal. (as amended by Federal Law dated 06/30/2006 N 90-FZ) The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the period specified in part two of this article, paying him additional compensation in the amount of the employee’s average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.( part three ed. Federal Law of June 30, 2006 N 90-FZ) In the event of a threat of mass layoffs, the employer, taking into account the opinion of the elected body of the primary trade union organization, takes the necessary measures provided for by this Code, other federal laws, a collective agreement, and an agreement.

Thus, when you are dismissed due to redundancy, you should be provided with certain guarantees, including the possibility of employment. It is wrong to suggest in advance to refuse the proposed options.

This is interesting: Legal advice - Memo to the employee

Is it possible to refuse?

Is it possible not to sign a notice of layoff?
Can. However, this will not change anything; if a decision has been made to lay off jobs and there are no blatant violations , such as the candidate belonging to the “untouchable” category, such as pregnant women, then the signature in itself will not solve anything. They'll fire you anyway.

And if the company is planned to be liquidated, it will certainly not help, no matter who the person is.

Methods and conditions for delivering notice of a reduction in the number or staff of employees

The reduction procedure itself looks like this:

The head of the company issues an order to carry out reductions, it goes to the personnel department.
Personnel officers carefully study everyone who works in this organization and draw up lists of candidates.
Everyone who is on the list will receive two months' notice (and in case of mass layoffs, three months' notice).
The General Director issues a layoff order, and the accounting department receives an order to transfer payments to each of the departing employees. Each person being dismissed must also be familiarized with the order against signature (or, again, may refuse to sign).
Calculation, entry into labor records.

The notification is delivered personally to the employee . If he is absent - temporarily disabled or on vacation - then by registered mail with notification.

Notification procedure

Notifications must be drawn up in writing and delivered within the specified period to the addressee against signature.

You can send a notification in different ways. The simplest and most accessible: give it personally from hand to hand to an employee. But this is not always possible (for example, an employee of an enterprise may be on sick leave, on vacation or on a business trip). In such cases, it is permissible to send the notice to him through regular mail by registered mail with return receipt requested, in which the employee must also sign his autograph (thus, this method ensures that the notification reaches him). Another way is to transfer the document to the addressee’s place of residence through a representative, but this is only permissible if the condition is met that he has a power of attorney certified by a notary office.

If an employee refuses to sign a notice of layoff...

If an employee refuses to sign a layoff notice, then let him not sign.
Legally, this no longer matters .

The employer should not immediately be so hostile to this - it is much better to ask personally about the reasons that prompted this.

And they may not be hidden in a harmful nature, but in other nuances - for example, the employer did not offer the citizen to stay at work in another vacancy, the opinion of the trade union was not taken into account, and it is generally unclear how the employee got on this list. He has the right to ask his boss about all these reasons and receive a comprehensive answer.

It is quite possible that this person is not subject to reduction . This may be the case if it falls into the following categories:

pregnant workers;
on maternity leave;
combatants;
sole breadwinners in the household;
having two or more dependent people.

Meanwhile, if everything complies with the law and the notified person has not signed the paper within two working days, you need to move on to the next step - drawing up an act . It will then need to be filed in the employee’s personal file.

Drawing up an act

There is no single form approved by law for it; each company compiles it differently. The following points remain clear:

name of the organization, in full;
in whose presence the paper was drawn up;
name of the act (on refusal to sign the notice of layoff)
what we are talking about, concisely (warning about staff reductions and impending dismissal);
a phrase stating that such and such (job title, surname, first name and patronymic) refused to sign the notification;
how did he explain it? (if not, then that’s how it should be written – “not justified”);
signatures with transcripts, organization seal.

For example:

“We, the undersigned, have drawn up this act in that in connection with the implementation of measures to reduce the staff of Sigma-M LLC and in accordance with the current legislation (Article 180 of the Labor Code), the management of Sigma-M LLC personally notified through a notification against the signature of the senior cleaning manager Maria Ivanovna Petrova two months before her upcoming dismissal. Maria Ivanovna Petrova refused to sign and accept the notice. Maria Ivanovna Petrova also refused to give an explanation for this decision.”

Have a question for a lawyer?

Yes, this wording of the notice does not comply with the requirements of the labor code.

If you sign it, it means that you have refused all positions offered, do not want to work at this enterprise anymore and will be laid off. Another thing is when the proposed positions do not suit you, then you have the right to refuse them and downsize.

Main stages of the reduction procedure:

Issuing a layoff order Notifying employees and offering them another available job Notifying the trade union and the employment service Dismissing employees

Notice of staff reduction

After the order is issued, it is necessary to notify employees subject to layoffs of dismissal. This must be done no later than two months before dismissal. A notice is drawn up for each employee and handed over against signature. The notice indicates the date of the upcoming dismissal and its basis. The same document usually lists the positions offered to the employee, since Article 180 of the Labor Code obliges the employer to offer those being laid off another available job (if any).

Client clarification

I signed a notice of layoff dated December 8, 2014, it indicated a list of proposed vacancies that did not suit me. The layoff order is being given only now and is being asked to be signed retroactively. Is it worth signing? They also require me to sign a statement that says “I ask you to fire me due to reduction.” I refused to sign, they told me to sign that it’s okay, this is a standard procedure, I think they are deceiving me so as not to pay benefits.

23 February 2020, 12:59

There is no need to sign a statement that you are asking to be dismissed due to reduction; it is meaningless. You sign the redundancy notice and that’s it.

Order to reduce staff

Having decided to make a reduction, the manager issues a corresponding order. It should not be confused with an order of dismissal on grounds such as staff reduction - these are different documents issued at different stages of the reduction procedure. The form of the order to carry out staff reduction measures has not been approved, however, the preparation of this document must be approached with great care. Thus, the order must indicate the date of the upcoming reduction. This is the starting point in the reduction procedure, on which many other aspects depend (for example, the period for notifying employees about dismissal). The order also reflects changes made to the staffing table.

Article 180 of the Labor Code obliges the employer to offer those being laid off another available job (if available).

What's next?

Nothing further, the act is drawn up and filed with the case. After two months, a dismissal order is issued, which is also provided for review against signature. Or, again, refusal to review and sign. In the end, not signing a document is the right of every person.

A corresponding entry is made in the citizen’s work book. On the day of departure, he will have to receive in his hands all the payments due to him, and this is:

full payment, including compensation for vacations not taken;
allowance.

Thus, the talk that if you didn’t sign anything, then nothing will happen to you is a myth .
Unfortunately, it will. But whether the rights of the person being dismissed will be respected depends only on him, and going on the defensive is not the best idea.

It is much better to understand the reasons and ask for supporting documents.

What to do if an employee refuses to sign a notice of layoff?

The organization has decided to reduce staff - the position of “photographer”. An employee whose position is subject to reduction was invited by telephone to come to the HR department. At first he promised to arrive, but when the appointed time arrived, he never showed up. When we called him and asked him to come to the HR department, he began to threaten the HR inspector that we wouldn’t get away with this. It was decided to send a notice to the registration address on the same day and a report was drawn up stating that the employee refused to come to the personnel department and familiarize himself with the notice. The next day, the employee arrived at the HR department, the notice was read aloud to the employee by the HR inspector. But the employee refused to sign the notice, continuing to threaten that we would not get away with this. An act has also been drawn up regarding this. At the moment, we have followed the reduction procedure and we do not intend to violate the rights of the employee. The reduction procedure will be carried out in accordance with the law. However, judging by the employee’s mood, he may not accept the letter from the postman. How to act in such a situation? The employee also uses equipment purchased by our organization. This equipment (a camera, a laptop, a video camera) was given to him. The manager ordered the delivery of this equipment by January 21, 2019. Do we have the right to notify an employee about the delivery of equipment before the end of his period of work in our organization? That is, so that the equipment is at the workplace. At the moment, some of the equipment is in his personal use.

Date when you lay off an employee

Warn the employee about the layoff at least two months in advance (part two of Article 180 of the Labor Code of the Russian Federation) (1). There is no single approach to determining the date of dismissal. In practice there are two options. Proponents of the first do not include in the two-month period the day on which the notice was given, and begin counting from the next day after the employee was warned.

Other periods are calculated from the day the employee signed the notice. And they reduce it on the last day of the second month. If the company warned the employee on September 1, then they will be fired on October 31 (appeal rulings of the Supreme Court of the Republic of Khakassia dated May 5, 2020 in case No. 33-1350/2016 and the Moscow City Court dated May 10, 2020

In the notice, indicate the date of dismissal. The law does not directly require this, but it is better to spell it out so as not to argue when the allotted period ends. And be sure to write down the date of dismissal if the employer plans to lay off an employee later than two months have passed. Make sure the layoff day does not fall on a weekend.

List which categories of workers the law protects from layoffs (3). You cannot dismiss employees with young children, pregnant women and fathers of many children (Article 261 of the Labor Code of the Russian Federation). At the time of notifying the employee about the layoff, the employer must have this information. But it happens that a company finds out that an employee cannot be laid off after giving notice of dismissal.

To protect the company from illegal layoffs, in the notice, set out the entire list of reasons when an employee cannot be fired. Indicate that if the employee believes that he is in a protected category, then he should provide supporting documents to the HR department. If the employee decides to hide some circumstances, the employer will prove that he explained to the dismissed person his rights.

The parties may not wait until two months have passed after notification and terminate the employment contract earlier (part three of Article 180 of the Labor Code of the Russian Federation). To do this, write down a similar condition in the notice (4). But for the employer this is an additional expense. During the time remaining before the expiration of the two-month period, it is necessary to pay the average salary.

If the employer agrees to this, then receive a statement from the employee with a similar request. When an employee writes such a statement, the company will free itself from the remaining stages of the reduction. Additionally, we recommend that the employee sign a document stating that he refuses to be transferred to any suitable vacancies. This will deprive him of the opportunity to blame the company for hiding any terms of the reduction.

Write a notice to each employee personally. It is better for the employee to keep his notice in his hands. Otherwise, there is a risk that he will not sign anything. Make sure that the notice is signed on behalf of the employer by the manager or other person who has the authority to dismiss (5). The HR officer cannot warn employees about layoffs. The court will regard this as a violation of procedure, and the employee will be reinstated.