Reductions in divisions in 2020 - structural, separate, branch

Hello! We are reducing employees due to non-signing of a contract. What should be done first: an order to reduce positions, then an order to liquidate the department, or vice versa? Is a liquidation order mandatory, or is the reduction of all employees of a department logically the same as the liquidation of a department?

Update from February 6, 2013 - 10:13

Good morning! Thank you all very much for your answers! I’ll try to clarify the question: what to do with a department in which all employees have been laid off? Is it necessary to remove it from the staffing table by a separate order, or can it be stated in the reduction order, “to make changes to the staffing table.”? Second question: is it possible to liquidate a department because all employees in it have been laid off or to reduce employees because the department is being liquidated? The reason for both situations is lack of funding

A request has been received to clarify the issue. February 6, 2013 — 12:23

Good afternoon

You write everything in one order, for example like this:

On company letterhead

“_______” ______________________ 2013 No. _________

"About staff reduction"

In accordance with the decision of the employer, the decision of the joint meeting of the general meeting of founders and the trade union committee

LLC "ХХХ", dated "____"_________ ____, protocol N. ____ “On the reduction of the number and staff of employees in connection with the need to take measures to improve the financial position of the Company

Make the following changes from (specify date) to the staffing table dated “___”____20__ No.____:

1. Exclude (withdraw) from the staffing table (indicate the name of the structural unit from which the positions are excluded) the following positions: (indicate the names of the excluded positions):

No. Position name Number of units

1. Head of Department 1

2. Head of HR Department (full name):

• in accordance with the procedure established by current labor legislation, notify employees of the upcoming dismissal due to reduction in number and staff;

• bring to the attention of the trade union information about the upcoming release of employees;

• conduct a search for vacant positions for persons subject to layoffs.

3. To carry out work related to the release of workers and resolving issues regarding their employment, create a commission consisting of:

1. Full name Head of HR Department

2. Full name Chairman of the trade union committee

4. Full name of the head of the HR department. by “____”_________ ____ of the year, submit to me for approval a new staffing table for XXX LLC.

5. I reserve control over the execution of this order.

General Director (signature) Ivanov.I. AND.

Answers:

Dismissal due to reduction and dismissal due to liquidation are two different things. Liquidation involves the cessation of the work of a department, enterprise, etc. Reduction is a reduction in the number of staff without liquidating a department, enterprise, etc. So decide what is happening in your enterprise. Then the failure to sign the contract on the next. the deadline does not apply to the above two points at all.

An employment contract can be terminated by the employer if

reduction in the number or staff of the organization's employees.

When making a decision to reduce staff or numbers, the employer is obliged to notify about this in writing no later than two months before the start of the relevant measures.

The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the specified period,

paying him additional compensation in the amount of average earnings.

Upon termination of an employment contract due to

reduction in the number or staff of employees

the dismissed employee is paid severance pay in the amount of average monthly earnings, and he also retains his average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).

Clarification dated February 5, 2013 - 18:35 Dismissal based on disagreement with changes to the terms of the employment contract is not allowed. If the dismissal procedure is not followed, there are grounds for appealing it to the labor inspectorate or court within 1 and 3 months (Article 392 of the Labor Code of the Russian Federation).

When a department is liquidated, a reduction occurs and the employer is obliged to offer vacant positions in the company that are available in the same area to employees of the liquidated structure of the enterprise.

1. An order is issued to reduce the number or staff at the enterprise with a mandatory indication of the reason for the reduction two months before the proposed dismissal of workers.

2. A list of reduced positions and employees is compiled, taking into account the preferential right to remain at work. (Please note that in accordance with Article 261 of the Labor Code of the Russian Federation, pregnant women cannot be dismissed due to staff reduction. It is permissible to dismiss a woman due to the expiration of an employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of an absent employee and is impossible in writing the woman’s consent to transfer her before the end of pregnancy to another job available to the employer (both a vacant position or work corresponding to the woman’s qualifications, and a vacant lower position or lower-paid job), which the woman can perform taking into account her state of health

As well as termination of an employment contract with a woman who has a child under the age of three, with a single mother raising a disabled child under the age of eighteen or a young child - a child under the age of fourteen, with another person raising these children without a mother, with a parent (other legal representative of the child) who is the sole breadwinner of a disabled child under the age of eighteen or the sole breadwinner of a child under three years of age in a family raising three or more young children, if the other parent (other legal representative of the child) is not a member in labor relations, at the initiative of the employer is not allowed (except for dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of part one of Article 81 or paragraph 2 of Article 336 of this Code).

3. Due to the fact that the dismissal of employees is carried out only after the removal of the corresponding positions from the staffing table, a new staffing table is approved, but not earlier than the day from which the positions being reduced cease to exist.

4. The employment service body is notified in writing about the upcoming release of workers in accordance with Part 2 of Article 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 “On Employment of the Population in the Russian Federation” of employment no later than two months before the start of the employment relevant activities, indicating the position, profession, specialty and qualification requirements for them, the terms of remuneration of each specific employee, and if the decision to reduce the number or staff of the organization’s employees may lead to mass layoffs of workers - no later than three months before start of relevant activities.

5. Issue written warnings about the upcoming dismissal at least two months before the dismissal in the form of a notice made in 2 copies, one of which remains with the employee, the second with his signature and the date of review by the employer. If an employee refuses to familiarize himself with a written notice of the reduction of his position, it can be sent to his home address by registered mail with notification and a list of attachments, and an act of refusal to familiarize himself with the notice of the reduction of the employee’s position can be drawn up in the presence of three people, which is certified by their signatures.

Dismissal of employees due to liquidation of the organization

In such a situation, the employer must pay him additional compensation, the amount of which is the employee’s average monthly earnings, calculated in proportion to the time remaining before the end of the notice period. Employment service notification. Notification of personnel. Issuance of the appropriate resignation order. Calculation and payment of labor benefits. Making a record of the calculation in the work books. When making a decision on dismissal due to the liquidation of an enterprise, the employer’s responsibilities include transferring relevant information about this in writing to the employment service in the event of: dismissal due to liquidation of more than 15 people; reduction of staff in the amount of: more than 50 people within 1 month; more than 200 people within 2 months; resignation of more than 1% of the total number of employees or staff reduction within 1 month in areas with a total employment of no more than 5,000 people. Depending on the characteristics of the territorial development of the economy, as well as the level of unemployment in the region, other criteria for the process of dismissal of personnel may be established, which are determined by the state authorities of the republics within the Russian Federation, autonomous entities, regions, districts and cities. Dissolution information must be provided 2 months before the start of the relevant process.

Dismissal of employees upon closure of a separate division

Hello, in this article we will try to answer the question “Dismissal of employees when closing a separate division.” You can also consult with lawyers online for free directly on the website.

If there is documentary evidence of this separate division, it will take more time to close it than with other options.

The right of an organization to terminate relations with an employee on this basis arises from the moment the decision to liquidate is made. The employment service must be notified in writing about such a decision and the release of workers (clause 2 of article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment in the Russian Federation”).

The fact of the creation of a liquidation commission is proof of the beginning of the liquidation procedure and a legal reason for dismissal (determined by the Supreme Court of the Udmurt Republic dated March 30, 2011 in case No. 33-1075/11).

Disbandment of a department at the enterprise

A legal entity may also decide to declare itself bankrupt and enter voluntary liquidation. Depending on the type of decision, the type of liquidation also differs. In accordance with the Federal Law “On Insolvency (Bankruptcy),” the liquidation of an enterprise declared bankrupt is carried out through bankruptcy proceedings, and voluntary liquidation is carried out through a simplified bankruptcy procedure for the debtor. The liquidation of an enterprise is considered completed after making an entry about this fact in the unified state register of legal entities.

When liquidating a branch or other separate division of an organization located in another area, termination of employment contracts with employees of this division is carried out according to the rules provided for cases of liquidation of an organization (Part 4 of Article 81 of the Labor Code of the Russian Federation, hereinafter referred to as the Labor Code of the Russian Federation). Consequently, when employees are dismissed due to the liquidation of a branch, they are provided with the same guarantees as during the liquidation of an organization, namely: The employer’s obligation to offer available vacant positions to an employee dismissed due to the liquidation of a branch is not provided for by law. At the same time, the law does not prohibit offering employees existing vacant positions at the employer if these employees are notified of the upcoming liquidation of a branch (or other separate division of the organization). Thus, provided that the employer complies with the procedure for dismissing an employee in connection with the liquidation of a branch, provided for by the Labor Code of the Russian Federation, without offering the employee another job, the employer does not violate the employee’s rights provided for by law. However, the employer must take into account that in a situation where a transfer is offered to all employees of a liquidated branch with the exception of one employee, this employee may consider that his rights have been violated and go to court. There is no judicial practice on the issue under consideration.

Liquidation of a separate division: step-by-step instructions

Update: September 21, 2020

All domestic legal entities have the right, at their discretion, to open divisions geographically remote from the main company. Such units are branches, representative offices, and other units, for example, stationary workplaces. The current rules of law describe in detail the procedure for creating structural divisions, but they do not contain step-by-step instructions for the liquidation of a separate division.

This is interesting: Unemployment benefits upon voluntary dismissal

The employer warned about the dissolution of the department and staff reduction

There are 3 people in the department - a chief and 2 engineers.

At the same time, a new department was organized with the same functions, but with a different name. There is only one boss. There are no new staffing schedules or job descriptions. In fact, the work is carried out by old employees. 1. You will write this type of application, application number one is simply for annual leave, because... you have two months notice, i.e. Enough time to go on vacation. But under no circumstances write an application for leave followed by dismissal, otherwise you will be dismissed at your own request and you will lose all payments. As for the offense, I understand everything, but it’s better to do what’s best for yourself and forget about the offense.

Apparently, the letter is not about liquidation itself, but about the cessation of activities (closing) of a separate division. It turns out that for tax authorities, “liquidation” and “closure” are not identical concepts. It can be judged that the term “liquidation” is used in relation to the organization as a whole, but only a separate structural unit can be “closed” (in this case, the organization itself may not be liquidated)

How to justify?

If the head office has decided to terminate the operation of its branch or representative office, certain procedures must be followed. This is a very important step - the liquidation of a division of the enterprise. Dismissal of employees accompanies this procedure.

So, there are two types of liquidation:

voluntary;
forced.

Only the Board of Founders of the company can decide on voluntary liquidation. The reasons include:

end of the division's life;
the goal for which education was created has been achieved;
conflict situation;
other circumstances.

Forced liquidation is possible only by court decision. The grounds for terminating the activities of a unit include:

activities without licenses;
activities that are prohibited by law;
activities with violations;
activities that do not comply with the charter of the head office;
registration that has been declared invalid;
declaring the unit bankrupt.

Liquidation of an enterprise: what can an employee hope for?

We will talk about what payments an employee is entitled to in the described situation in this article. A legal entity can be liquidated either voluntarily or forcibly. A resolution to liquidate a legal entity is issued by the same authority with whose permission the legal entity was created. Liquidation of a legal entity entails the termination of its activities without the transfer of rights and obligations by way of succession to other persons.

Good morning! Thank you all very much for your answers! I’ll try to clarify the question: what to do with a department in which all employees have been laid off? Is it necessary to remove it from the staffing table by a separate order, or can it be stated in the reduction order, “to make changes to the staffing table.” The second question: is it possible to liquidate a department because all employees in it have been laid off or to reduce employees because the department is being liquidated? The reason for both situations is lack of funding. In accordance with the decision of the employer, the decision of the joint meeting of the general meeting of founders and the trade union committee of XXX LLC, dated "____"_________ ____ G.

Period between notice of reduction and dismissal

Early dismissal during liquidation of an enterprise is possible only on the initiative of the employee, but the employer also has the right to offer this on completely legal grounds. In this case, the employee works less and loses almost nothing in material terms: he receives the average salary for the remaining days of the two-month notice period and a similar severance pay. To calculate the amount of compensation for unused vacation, the actual time worked will be taken into account, so the loss will amount to up to five average daily payments.

By internal agreement of the parties or if such a right is included in the collective labor agreement, the length of the working week can be reduced for employees without reducing pay. This can be one hour each working day or an hour on a certain day of the week: it is considered that workers receive additional time to look for a new job. With a gradual decrease in workload, there is no damage to the organization, and if employees find work faster, there will be no need to pay them a second and third salary.

At the same time, the articles of the Labor Code of the Russian Federation do not establish special benefits for the period from notice to dismissal. Employees are still required to comply with job descriptions and internal regulations. They can be fired for dishonest performance of duties, in which case they will not have to pay severance pay and wages for the remainder of the notice period.

The employer is obliged to offer suitable vacancies during the entire period before the dismissal of employees.

How to fire employees due to the closure of a branch of an enterprise?

The decision to close a branch involves reducing its staff. Is it possible to fire a pregnant woman or a maternity leaver during liquidation?

It is necessary to fire not only ordinary personnel, but also the manager - the procedure.

There are several stages of the dismissal procedure in such circumstances:

Step 1. An order is issued for the enterprise regarding the upcoming reduction of workers in connection with the closure of a separate division of the enterprise.
Step 2. Two months before the dismissal of employees, the employer sends each of them written notice of the upcoming event. The notification contains the following information: grounds for liquidation of the branch; settlement date; offer to transfer to other vacant positions in the same area.

Dismissal of maternity leavers and other benefit employees

As you know, some employees who belong to the preferential category cannot simply be fired. However, this rule does not apply if a division of the enterprise is liquidated. Dismissal of women who are on maternity leave can also be carried out if the education ceases its activities.

In addition, exempt employees include:

women who are on maternity leave;
employees who are on official leave during this period;
women who have not yet gone on maternity leave, but are already in an interesting situation;
employees who are on sick leave at the time of liquidation;
women who are raising small children under 3 years of age.

It is worth noting that all of the listed citizens can also be dismissed unilaterally. However, department management is required to notify them, as is all other staff. Moreover, they can all count on compensation payments and offers about available vacancies.

conclusions

On this topic, we will draw several main conclusions:

During the liquidation of a branch, the dismissal of employees is carried out according to Art. 81 Labor Code of the Russian Federation.
The procedure for laying off employees when closing a separate division is identical to the standard procedure.
When reducing staff or numbers, the employer is obliged to notify staff about the procedure 2 months before it begins. An exception applies to seasonal workers and workers on fixed-term contracts.
The main documents drawn up by the personnel service during layoffs: layoff order, notification to the employment center, notification to employees, dismissal order, personal account, work book, certificates.
The dismissal order has special forms T-8 and T-8a. In case of mass layoffs, we recommend the second option.
Upon dismissal due to the liquidation of a branch, employees receive: accrued salary, compensation for unused vacation, severance pay (up to three times the employee’s average earnings).

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Dismissal according to the rules for liquidation of the enterprise as a whole

When liquidating a separate division, the dismissal of employees must be carried out taking into account the guarantees established by Art. 180 and 178 Labor Code of the Russian Federation. Here is the algorithm for the employer's actions:

The trade union is notified of liquidation at least 3 months in advance.
Employees are notified of impending dismissal at least 2 months in advance (against signature and individually).
The employment center is notified of dismissal due to abolition.
An order is issued to terminate the employment contract.
The corresponding entries are made in the employee’s personal card and his work book.
On the last day of work, those dismissed are given work books, and amounts related to wages and unused rest days and severance pay are also transferred.
If the employee has not found another job 2 months after dismissal, he is paid the average salary (for 2 and sometimes 3 months of job search).

This is interesting: Dismissal due to change of residence

How to disband a department? Is this a reorganization of the enterprise?

In answer to your question, it should be noted that the abolition of a department is not a reorganization of the organization. Reorganization is regulated by the norms of the Civil Code of the Russian Federation and can take place in the forms of merger, accession, division, separation, transformation (Clause 1 of Article 57 of the Civil Code of the Russian Federation). Regardless of the form of reorganization, labor relations with employees continue (Part.

5 tbsp. 75 Labor Code of the Russian Federation). From your question it follows that there is an order to make changes to the staffing table, therefore, the employer must comply with the procedure for reducing the number of employees of the organization provided for by law (Article 180 of the Labor Code of the Russian Federation)

On what grounds to dismiss in connection with the abolition of a separate division

If a division of the company is liquidated, then the dismissal is carried out according to the rules established for cases of closure of the entire organization, but only if it is located in an area different from the location of the company’s head office (Part 4 of Article 81 of the Labor Code of the Russian Federation).

This means that dismissal under clause 1, part 1, art. 81 of the Labor Code of the Russian Federation (liquidation of an organization) is allowed only if the employer’s activities in a given area are completely terminated (which is why he does not have the opportunity to transfer an employee (with his consent) to another position in the same organization within the same territory). This was indicated by the Constitutional Court of the Russian Federation in its ruling dated April 21, 2005 No. 144-O.

In all other cases, dismissal will have to be carried out due to reduction (clause 2, part 1, article 81 of the Labor Code of the Russian Federation). These are situations where in a given area:

the parent company also operates at the same time;
Other divisions of the organization continue to operate.

General provisions on structural divisions

Russian legislation provides for the right of each company to have and create its own separate divisions (Article 55 of the Civil Code of the Russian Federation).

It is important to note that no structural unit can be physically and legally located at the address of the main company. Such a structure must be separate from the parent company and geographically remote from it. Such a structure must have stationary workplaces with a period of operation of more than one calendar month (Article 11 of the Tax Code of the Russian Federation). A structural unit of a company can be a branch, representative office or other separate division (Article 55 of the Civil Code of the Russian Federation and Article 11 of the Tax Code of the Russian Federation

Domestic legislation, while giving companies the right to create structural divisions that are territorially separate from the main company, also gives them the right to liquidate a structural division of the organization.

Inventory

When a division of an enterprise is closed, the commission appointed by order must conduct a complete inventory of all existing property of the branch or representative office, including that stored in the warehouse. In order to conduct an inventory check, an order is issued.

When liquidating a structural unit of an enterprise, the document must be created on the head office letterhead and include:

Composition of the appointed commission.
A complete list of what will be included in the check. This could be money, movable property, etc.
Inventory deadlines.
Reason (liquidation).
The timing of receipt of funds to the accounting department for evaluation.

It is important to remember that absolutely all property that is listed on the balance sheet of the enterprise is subject to accounting.

Liquidation of a structural division of the company

It is important to take into account that not a single separate structural unit has the legal capacity of an organization and is not a legal entity. Civil law rules for the liquidation of organizations do not apply to structural divisions.

So, for example, to liquidate a structural unit that is separate from the main company, a liquidator is not appointed and a liquidation commission is not created. A liquidation balance sheet is also not created. The above does not equally apply to branches, representative offices and other separate divisions of the company.

The procedure for liquidating a separate division directly depends on the type of structure being liquidated. Thus, the procedure and algorithm for liquidating a branch or representative office differ significantly from the liquidation of structural units not listed in the Civil Code of the Russian Federation.

For example, as follows from the literal interpretation of Art. 5 of Federal Law No. 14-FZ dated 02/08/1998, in order to organize the activities of a branch or representative office, as well as to terminate the activities of a separate division, a decision of the owners of the LLC is required. Similar decisions of owners are required when liquidating branches and representative offices of organizations of other organizational and legal forms.

If information about the structure being liquidated was included in the charter, then the charter should be amended by excluding from its content the mention of the structural unit subject to liquidation.

When liquidating a division in an organization (branch or representative office), information about which is contained in the organization’s charter, you must fill out and submit to the tax office an application in form No. P13001. This is necessary to amend the company's charter.

Also, a company liquidating a branch or representative office has the obligation to submit a notification to the tax authorities in the form S-09-3-2, approved by the Federal Tax Service of Russia in order dated 06/09/2011 No. ММВ-7-6/ [email protected] . The notice must be sent no later than three working days from the date of the decision on liquidation.

If a structural unit that is not specified in the norms of the Civil Code of the Russian Federation is liquidated, then there is no need to make a decision and make changes to the charter. In this case, the head of the main company issues an order to liquidate the separate division.

In this case, the tax authorities are also sent form C-09-3-2. The deadline for submitting this form is three working days from the date of termination of the activities of the Russian organization through another separate division (closing of another OP).

The general step-by-step instructions for liquidating structural units are as follows:

making a decision on the liquidation of a branch and representative office or issuing a corresponding order on the liquidation of an OP;
if information about the branch/representative office is in the charter, then you need to prepare changes to the charter, make a decision to amend the charter, fill out application No. P13001, pay the state fee, and then send the entire set of documents to the tax authorities;
fill out a notification in form C-09-3-2 and submit it to the tax office of the main company;
After these procedures, you can proceed with dismissal upon liquidation of a separate division.

Tax notice

When liquidating a division of an enterprise that is listed as a separate legal entity, it is necessary to register with the tax service. To do this, it is enough to submit a correctly completed application. After receiving it, Federal Tax Service employees will process it no more than 10 working days. It is worth noting that the tax authority may decide to conduct an on-site inspection, in which case the processing time for the application will increase to 30 days.

After confirming the application, the head office must notify its Federal Tax Service about the closure of the unit within 30 days.

Then you can notify other authorities about the liquidation, including:

Pension Fund;
Social Insurance Fund;
MHIF;
Central Bank of the population where the branch or representative office was located.

It is worth noting that a copy of the founders’ decision to terminate the education must also be sent to all of the listed bodies.

Nuances

On the last day, the person must be given a sum of money, which includes:

remuneration for actual time worked;
compensation for unused vacation;
sick leave payments;
severance pay;
other payments provided for by the collective agreement.

If disputes arise regarding the amount of payments, the employer is obliged to provide the part that is not subject to dispute. The second part is provided only after negotiations, recalculation or going to court.

The person is also given a work book. Entry into the labor record is made on the basis of the head of the branch. At the same time, the liquidation of the organization must be indicated as a reason for terminating the employment contract - clause 1 of Article 81 of the Labor Code of Russia.

When a branch is liquidated, employees are dismissed in accordance with the established procedure. All rules and conditions are prescribed by law. The employer is obliged to comply with all stages and complete the necessary documents. On the last working day, the employee receives a full payment, as well as all documents, including those required for registration at the labor exchange.