What is liquidation of a company?
Liquidation is the termination of the activities of a legal entity with its subsequent removal from the register of legal entities. There is also the concept of “alternative liquidation”.
It means that the enterprise is undergoing changes, and does not cease operations in the classical sense. The latter just stops.
The features of the liquidation process are disclosed in Articles 61-64 of the Civil Code of the Russian Federation. We are talking about voluntary termination of an organization’s activities when the company has become unprofitable. The feasibility of such a company's existence is questionable.
In addition to voluntary liquidation of an enterprise, there is also forced liquidation. It occurs in cases where the court decides to close down an incorrectly registered, illegal or bankrupt company.
This article will reveal what voluntary liquidation of an organization is and what is the procedure for terminating the activities of an ordinary or municipal enterprise.
After this, it is necessary to consider such an issue as the reduction of employees due to the liquidation of the enterprise, and payments to them.
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HR Forum
But in the event of termination of the activities of a separate division, it must be borne in mind that a division of a legal entity can be considered separate if it meets the requirements contained in Art. 55 Civil Code of the Russian Federation. What is a separate division? In accordance with Art.
55 of the Civil Code of the Russian Federation, the common features for representative offices and branches are the following: they are located outside the location of the legal entity, represent the interests of the legal entity and protect them;
are endowed with property by the legal entity that created them and act on the basis of the provisions approved by it; have managers appointed by a legal entity and acting on the basis of its power of attorney; are subject to indication in the constituent documents of the legal entity that created them. According to paragraph 2 of Art.
The procedure for liquidating an enterprise
There are several types of enterprises, and each has its own liquidation procedure. Nevertheless, there are basic points that are typical for all legal entities.
And the closure of a company according to the standard procedure takes place in several stages. First of all, it is necessary to approve the composition of the liquidation commission and make a decision on closing the company.
It also establishes the timing and private procedure for closing the company. The official dissolution notice form is then completed. It is sent to the local tax authority within 3 days after the decision to liquidate.
At the same time, it is published in official print media. This is necessary to notify creditors of their right to demand payment for all debts of a municipal or ordinary enterprise.
The publications performing this function are “Bulletin of State Registration” and “Bulletin of the Supreme Arbitration Court of the Russian Federation”.
In order to reduce the time period during which the procedure will be implemented as much as possible, it is necessary to prepare a number of documents.
- After the commission is formed, a copy of the decision to close the company must be certified with the seal of the enterprise that will be closed, as well as with the signature of the head of the commission.
- To make payments to all parties involved (creditors, etc.), you must attach a payment document.
- After this, you need to take an application form. Two copies are required. They are certified in the same way as in paragraph 1.
- After this, you need to issue two copies of a covering letter, certified in the same way and containing the delivery address of the publication, the document on the basis of which the financial statements are prepared, as well as a list of securities for publication.
- Then you need to look at who is involved in liquidation issues. If you are not the owner of the company, then you must additionally attach a power of attorney.
Important: either the owner or a trustee can deal with liquidation issues. To do this, it is necessary to prepare a copy of the decision of the liquidation commission, two copies of the application form and the same number of copies of the covering letter. They are certified by the seal of the organization and the head of the liquidation commission.
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Liquidation terms and cost of the procedure
There are no fixed values for the timing and cost of the liquidation procedure. This aspect depends on a number of factors:
- the amount of the company's debt;
- book value of assets;
- the amount of work to be performed;
- type of liquidation procedure chosen.
Liquidation can take from 2 weeks to 1.5 years. The bankruptcy procedure is considered the longest. Reorganizing an LLC will take 3-5 months, changing the management team and founders will take up to a month, and only the general director will take 2 weeks.
Changing a director will cost the least: 10-60 thousand rubles. Changing all managers can already cost up to 80 thousand rubles. The cost of reorganization can vary in the range of 40-60 thousand rubles.
Self-liquidation is a more expensive procedure; for it you need to pay from 40 thousand rubles. up to 1 million rubles Bankruptcy will cost at least 250 thousand rubles.
Next steps
Next, to liquidate a municipal or any other enterprise, you need to notify creditors, the employment service, and employees.
The latter must be notified no earlier than two months in advance. The deadlines are quite short.
The fact that the announcement of liquidation was published in printed publications does not relieve the obligation to notify creditors of this event.
After this, government agencies carry out an on-site tax audit. Typically, the time frame for this procedure is two to three months. It is also necessary to demand settlement from all debtors who borrowed money from the liquidated organization.
Afterwards, a liquidation balance sheet is created at the moment, and an inventory of the property is carried out. The company itself makes payments to all creditors. It must be carried out in this sequence.
- First of all, settlements are carried out with those creditors to whom there are obligations related to harm to health or life. This also applies to moral damage.
- Then settlements are made with those creditors who need to pay benefits after the reduction occurs. This applies to such topics as dismissal due to the liquidation of an enterprise.
- Calculations are made with budgets (taxes), as well as funds.
- Compensation and debts are paid to all other creditors to whom there are obligations.
Well, the final stage is to remove the company from the register of legal entities.
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Step-by-step instructions for liquidating an organization
The procedure for closing a legal entity is a lengthy process. Here are step-by-step instructions for liquidating a company.
Stage 1. Making a decision to liquidate a legal entity and forming a liquidation commission
When the founders decide to close, they are obliged to formalize it in accordance with all legal requirements. In particular, draw up and sign the official minutes of the meeting or the decision of the sole owner.
After which they will have three days to notify the tax authorities of the liquidation. Otherwise, a fine of RUB 5,000 may be imposed.
It is advisable to form a liquidation commission before submitting the notice to the Federal Tax Service, since it also requires approval from the tax authorities. Its members usually include a manager, lawyer, accountant, and founders.
The notice in the prescribed form is accompanied by a decision on liquidation and a notice on the creation of a special commission. Upon positive review of the submitted documents, the Federal Tax Service issues a certificate to the company stating that it is in a state of closure and makes a corresponding note in the Unified State Register of Legal Entities (that the company has a liquidation commission).
Tax authorities are required to transfer information about liquidation to extra-budgetary funds, including pension funds; the company does not need to notify them of this fact independently.
From this date, the company cannot act as a founder of other legal entities and make adjustments to the charter documents.
The enterprise must notify the bank about the composition of the formed commission. This will require re-registration of the signature on the card to the chairman of the enterprise closure commission and the person responsible for signing the accounting documentation.
Stage 2. Announcement of liquidation of a legal entity
By law, a legal entity is required to officially announce its upcoming liquidation in the media. This is done so that all creditors can declare the presence of monetary or property claims against the company being buried. “Bulletin of State Registration” and “Bulletin of VAS” are responsible for the publication of such messages in the Russian Federation (the latter publishes the largest enterprises). Messages are posted for a fee.
The published message must contain the following information:
- full name;
- OGRN, INN and KPP;
- legal entity address;
- information about the decision made to close the enterprise, its date and number;
- procedure, terms and address for receiving creditor claims.
To publish in the journal, you will need to submit an application form, a copy of the decision on liquidation/appointment of a commission, a paid receipt for the cost of the message, a covering letter, and a power of attorney.
Stage 3. Notification of company employees and employment center
You must notify all employees of your plans to liquidate a legal entity at least two months before their dismissal. In this case, absolutely all employees are subject to dismissal, regardless of their status.
In the event of the closure of a large enterprise and mass layoffs, the employment center is additionally notified. Data about each employee, his experience and qualifications is transferred here.
Before official dismissal, the company must pay all employees wages and benefits.
Step 4. Personal notification to each creditor
Publishing a notice in the media does not relieve the company of its obligation to notify each creditor of its decision to liquidate. This must be done in writing.
Stage 5. Tax and other audits
A legal entity that is expected to be closed will most likely be subject to an on-site tax audit. Typically this procedure takes 2-3 months. Therefore, companies are advised not to close the enterprise for at least three years, hand over zero balances, and only then declare liquidation. By law, tax officials can only check documentation for the last three years.
If tax arrears are identified, the taxpayer may be held liable for taxation. He will be required to transfer not only tax debts, but also fines and penalties to the budget.
In addition to the Tax Service, an audit of an organization can be initiated by extra-budgetary funds: the Social Insurance Fund and the Pension Fund of the Russian Federation.
Stage 6. Preparation of the interim liquidation balance sheet
Before this, the liquidation commission identifies accounts receivable, reconciles accounts and takes inventory of property. If necessary, the commission carries out judicial and claims work with debtors. All these measures are necessary to form the money supply that will be used to pay creditors.
There are no strict requirements for the interim liquidation balance sheet. It displays information about all the company’s assets, creditor claims and the results of their consideration. The right to approve the balance belongs to the founders.
The interim balance itself, together with the notification, is transferred to the registration authority. A note of its receipt appears in the Unified State Register of Legal Entities.
Stage 7. Repayment of creditors' claims
Now comes the turn to pay off creditor claims. Initially, taxes are paid for moral damages, then - for wages and remuneration, and finally, it is the turn of authorized organizations and creditors.
If the funds in the company’s accounts turned out to be insufficient to repay the entire volume of obligations, then the liquidation commission must take measures to sell the company’s property and replenish the cash supply. When even this step did not help and there was not enough money to pay off all debts after the sale of property, the commission is obliged to go to court to declare the enterprise bankrupt.
Stage 8. Drawing up a liquidation balance sheet
After all creditor claims have been repaid, a final liquidation balance sheet is created in Form No. 1 OKUD. After its approval by the tax authorities, the company may be excluded from the Unified State Register of Legal Entities.
The remaining property on the balance sheet is divided between the founders.
What do you need to know about the closure of a municipal enterprise?
The closure of a municipal unitary legal entity deserves special consideration. This form of company is quite specific; the key characteristic of such an enterprise is the lack of ownership rights to the property that the company disposes of.
The second feature is the indivisibility of property. Thus, after the liquidation of a municipal enterprise, it will not be possible to distribute it among deposits. All property allocated to a unitary enterprise can be managed, but it cannot be completely disposed of.
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Informing the employment service
For employers - individual entrepreneurs, this period is shorter - no less than two weeks. If it is planned to leave many people unemployed, the time frame for informing employment services increases to three months. At the same time, industry tariff agreements will help determine how large-scale the consequences will be for the labor market, and if they are not established for a specific industry, then Resolution of the Government of the Russian Federation of 02/05/1993 N 99. It states that mass layoffs are considered:
- termination of contracts due to liquidation with 15 or more employees;
- deprivation of work of 1% of the total number of employees for 30 calendar days in regions with a total number of employees of less than 5 thousand people.
This is important to know: Who cannot be fired due to staff reduction
At the same time, regions have the right to establish other criteria for mass layoffs, so it is better for employers to consult with local authorities on this issue. It is better to do this in advance, since failure to provide or untimely provision of such information may result in punishment under Article 19.7 of the Code of Administrative Offenses of the Russian Federation.
The procedure and stages of liquidation of a municipal enterprise
Both forced and voluntary liquidation of a municipal unitary enterprise have a procedure established by current legislation.
After this procedure, the organization's activities cease. At the same time, there is no transfer of rights and what the company is obliged to do from the municipal enterprise to other owners.
But, despite the differences, the liquidation of a municipal unitary enterprise is generally similar to a similar process with regard to other types of legal entities.
In the same way, calculations must be made and compensation must be carried out after the reduction of workers has been carried out.
It is necessary to issue severance pay to everyone to whom the organization owed money. A liquidation commission is also appointed, which receives the authority to manage all affairs of the municipal legal entity.
She is obliged to represent the liquidated enterprise in court. If during the procedure it is determined that settlements and compensation to creditors cannot be paid, then the municipal legal entity must apply to the arbitration court to be declared bankrupt.
Very often, after completing several steps of voluntary liquidation, it turns out that the organization should have been forcibly liquidated.
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Features of a separate enterprise structure
1. Clause 7, Part 1, Art. 77 of the Labor Code of the Russian Federation – the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (Part 4 of Article 74 of the Labor Code of the Russian Federation).
Guided by Art. 74 of the Labor Code of the Russian Federation, the employer can change the terms of the employment contract determined by the parties on his own initiative (with the exception of changes in the employee’s labor function) only in the case where the terms of the employment contract determined by the parties cannot be maintained for reasons related to changes in organizational or technological working conditions ( changes in technology and production technology, structural reorganization of production, etc.).
The employer is obliged to notify the employee in writing no later than two months in advance of the upcoming changes to the terms of the employment contract determined by the parties and the reasons that necessitated the need for such changes, unless otherwise provided by the Labor Code of the Russian Federation.
If the employee does not agree to work under the new conditions, then the employer is obliged to offer him in writing another job available to him (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid work), which the employee can perform taking into account his health status.
In this case, the employer must offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
In the absence of the specified work or the employee refuses the offered work, the employment contract is terminated in accordance with clause 7, part 1, art. 77 of the Labor Code of the Russian Federation with the payment of severance pay to the employee in the amount of two-week average earnings on the basis of paragraph. 6 hours 3 tbsp. 178 Labor Code of the Russian Federation.
However, upon termination of the employment contract on the basis of clause 7, part 1, art. 77 of the Labor Code of the Russian Federation, in the event of a dispute, the employer must provide evidence that the change in the terms of the employment contract determined by the parties was a consequence of changes in organizational or technological working conditions, for example, changes in equipment and production technology, improvement of workplaces based on their certification, structural reorganization of production, and not worsened the employee’s position in comparison with the terms of the collective agreement or agreement (clause 21 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2).
2. Clause 1, part 1, art. 81 of the Labor Code of the Russian Federation - at the initiative of the employer, an employment contract can be terminated upon liquidation of the organization (dismissal upon liquidation) or termination of activities by an individual entrepreneur.
Dismissal during liquidation under this article is possible, since in accordance with Part 4 of Art. 81 of the Labor Code of the Russian Federation, in the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.
But in the event of termination of the activities of a separate division, it must be borne in mind that a division of a legal entity can be considered separate if it meets the requirements contained in Art. 55 Civil Code of the Russian Federation.
Reductions due to the liquidation of a business cannot be compared with a reduction in staff in an attempt to improve the financial position of the company. In the second case, certain categories of workers are “protected by law”; they are included in the group of beneficiaries, and the company manager has no right to deprive them of their jobs.
If an enterprise goes through a liquidation procedure, absolutely everyone is fired, even beneficiaries. And there is logic in this: where will these people work if the company ceases to exist both on paper and in reality.
Alternatively, the manager can offer them a place in another of his companies. For example, he closes a branch, but there are vacancies at the head office, or he closes one company, but opens another.
The company's management must first notify the Federal Tax Service of its decision to close the enterprise (its employees are required to make appropriate changes to the Unified State Register of Legal Entities), then the Pension Fund, the Social Insurance Fund and the Employment Service.
83 Tax Code of the Russian Federation.
Attention
Liquidation of a separate structural unit There is no such concept in labor legislation as the liquidation of a separate structural unit, as well as grounds for dismissal “in connection with the liquidation of a separate structural unit.” Only an organization can be liquidated, and a division ceases its activities (closes).
For this purpose, an appropriate procedure has been established, in particular, changes are made to the constituent documents, a record of the liquidation of the branch (representative office) is made in the Unified State Register of Legal Entities, and the separate division is deregistered with the tax inspectorate.
If this happens, the employee will be reinstated as illegally dismissed. At the same time, the organization must pay him the average salary for the entire period of forced absence.
We suggest you read: How long should parts of the vacation be?
This is stated in Article 394 of the Labor Code of the Russian Federation. Preemptive right Before approving the list of laid-off employees, it is necessary to check whether any of them have a preemptive right to remain at work (Article 179 of the Labor Code of the Russian Federation).
Info
Labor Code of the Russian Federation). Notice of layoff All laid-off employees must be notified of the upcoming layoff. This must be done at least two months before the expected date of dismissal.
Each employee must be given the notice in person and against a signature confirming the fact of the notification*.
Thus, in order to terminate employment contracts with employees due to the termination of the activities of a branch, representative office or other separate structural unit of an institution located in another locality (dismissal during liquidation), it is necessary that this separate unit meet the above criteria, and in labor The contract with the employee indicated a specific separate structural unit and its address as the place of work.
1 tsp. 1 tbsp. 81 of the Labor Code of the Russian Federation due to non-recognition of a structural unit as separate (Cassation ruling of the Pskov Regional Court dated 06/08/2010 No. 33-625).
closes the Bank Branch in Samara and the position is subject to reduction in accordance with clause 1 of part 1 of Article 81 of the Labor Code of the Russian Federation. The bank employee insistently asks her to come and sign this “dummy” that she has received this notification.
Is such an offer legal or can the employer offer jobs only to all employees of the liquidated branch?
When liquidating a branch or other separate division of an organization located in another locality, 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)
81 of the Labor Code of the Russian Federation should employees be fired? Should an employer offer dismissed employees vacant positions in other branches located in the same locality? The organization plans to liquidate a branch located in another area, while at the location of the liquidated branch (in the same locality) there are two more operating branches of the organization. What is the procedure for dismissing branch employees? In accordance with which paragraph of Art.
Liquidation of a branch is quite legal, but when you were laid off, you should have been offered another vacancy, if there is one. The notice states that the separate division will be liquidated as of July 1. You must be given documents on the day of dismissal and a full payment must be made.
Liquidation of a legal entity entails its termination without the transfer of rights and obligations by way of succession to other persons, with the exception of cases provided for by federal law. A legal entity may be liquidated in cases specified by law.
Of course, when an organization is liquidated, staff reductions are made. In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.
Reduction during liquidation is the only basis when an employment contract can be terminated during the period of temporary incapacity for work of the employee and while on vacation. Employees are warned by the employer personally and against signature at least two months before dismissal about the upcoming dismissal due to the liquidation of the organization, reduction in the number or staff of the organization's employees.
Also, the dismissed employee is paid severance pay in the amount of average monthly earnings, and also retains his average monthly earnings for the period of employment, but not more than two months from the date of dismissal.
The main problem of liquidation of a unitary enterprise
The most common reason for liquidation is the bankruptcy of a municipal institution. And the main problem here is the lack of ownership of property. Therefore, the head of a municipal enterprise cannot go to court to declare bankruptcy.
The calculation is that the owner of the enterprise, the creditor or the authorized bodies apply.
The second problem is that the possibility of debt compensation is provided only if the payment is made from the personal property of the owner of the municipal enterprise.
Advice: the necessary costs for compensation of debts to creditors should be calculated in advance. This will help somewhat speed up the process of liquidating the company.
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Definition of concepts
The reasons for a reduction in headcount or staff can be many circumstances, for example, a decrease in the profitability and financial stability of an economic entity or reorientation of production.
If in many cases the problem can be solved without laying off people, then in the case of reorganization and especially liquidation of the company, layoffs are inevitable.
Staff reduction means the company abandons certain positions. For example, a reduction in the position of a legal adviser is accompanied by the dismissal of all specialists occupying this vacancy.
Downsizing is a reduction in the number of employees performing the same duties. For example, reducing the number of legal advisers from 4 to 2.
We wrote about the difference between downsizing and downsizing here.
Reorganization means the termination of a company's activities with the transfer of rights to another legal entity or several individuals. As a result of the reorganization, one or more enterprises may be liquidated and at the same time one or more economic units may be created.
Important! Reorganization can be carried out in different forms (accession, merger, division, separation, transformation). At the same time, the new owners can take either the path of downsizing or staff reduction.
Liquidation involves the complete completion of the work of a legal entity without transferring rights to other persons. Liquidation can occur either voluntarily or forcibly (at the insistence of the judiciary).
Based on the essence of the word “reduction” and, in particular, the terms “staff reduction” and “reduction in headcount”, during liquidation it is not reductions that are carried out, but layoffs.
This is confirmed by the norms of the Labor Code of the Russian Federation, which distinguishes between the concepts of “reduction” and “dismissal due to liquidation”. For example, this can be observed in the second part of Article 180 of the Labor Code of the Russian Federation. However, in both cases the same procedure for providing guarantees, notifications, etc. is applied, with some exceptions.
Dismissal and reduction during liquidation of an enterprise
Of course, we will have to lay off workers. Naturally, this is a complex operation, during which they will suffer moral damage.
Therefore, the issue of compensation needs to be resolved. When a dismissal is carried out due to the liquidation of an enterprise, it is necessary to provide each laid-off employee with severance pay.
But it's not that simple.
In general, who does an employer have the right to fire? Everyone, even those on vacation or sick leave. Severance pay, in accordance with paragraph 2 of part 1 of Article 81 of the Labor Code of the Russian Federation, must correspond to monthly earnings.
In some cases, benefits are paid for the third month after dismissal. This decision must be made by the state employment service.
But this kind of benefit is provided only if you contact this government agency within two weeks after dismissal and the two-month period was not enough for employment.
Severance pay must be paid. How to save money? This is possible if employees wish to resign on other legal grounds: transfer to another job, by agreement of the parties or at their own request.
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What is a separate division?
In accordance with Art.
55 of the Civil Code of the Russian Federation, the common features for representative offices and branches are the following: they are located outside the location of the legal entity, represent the interests of the legal entity and protect them; are endowed with property by the legal entity that created them and act on the basis of the provisions approved by it; have managers appointed by a legal entity and acting on the basis of its power of attorney; are subject to indication in the constituent documents of the legal entity that created them.
According to paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, a separate division of an organization is any territorially separate division from it, at the location of which stationary workplaces are equipped.
Recognition of a separate division of an organization as such is carried out regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified division. In this case, a workplace is considered stationary if it is created for a period of more than a month.
In addition, an organization that includes separate divisions located on the territory of the Russian Federation is obliged to register with the tax authority at the location of each of its separate divisions in accordance with Art. 83 Tax Code of the Russian Federation.
Thus, in order to terminate employment contracts with employees due to the termination of the activities of a branch, representative office or other separate structural unit of an institution located in another locality (dismissal during liquidation), it is necessary that this separate unit meet the above criteria, and in labor The contract with the employee indicated a specific separate structural unit and its address as the place of work.
Otherwise, if there is a dispute, the court may declare the dismissal during liquidation illegal on the basis of clause 1, part 1, art. 81 of the Labor Code of the Russian Federation due to non-recognition of a structural unit as separate (Cassation ruling of the Pskov Regional Court dated 06/08/2010 No. 33-625).
The employer must also keep in mind that when terminating an employment contract in connection with the cessation of the activities of a separate structural unit, it is necessary to perform all those actions that are provided for dismissal during the liquidation of the organization.
These actions include a warning by the employer to employees in accordance with Part 2 of Art. 180 of the Labor Code of the Russian Federation on the upcoming dismissal in connection with the termination of the branch’s activities in person and against signature at least two months before the dismissal.
The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the two-month period, 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.
Also, the employer, in accordance with Part 1 of Art. 178 of the Labor Code of the Russian Federation, upon termination of an employment contract in connection with the cessation of the activities of a separate unit (clause 1, part 1, article 81 of the Labor Code of the Russian Federation), pay the dismissed employee severance pay in the amount of average monthly earnings.
In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it.
An employment or collective agreement may provide for other cases of payment of severance pay, as well as establish increased amounts of severance pay.
In conclusion, I would like to add that if there is a condition in the employment contract about working in a separate unit with an indication of its address, the transfer of workers to work in separate units located in another area is possible only with their consent and by entering information about the change of place of work in the employment contract. contract
However, the employees’ demand for dismissal upon liquidation of a separate division, as well as staff reduction, is illegal, since dismissal on this basis can only be carried out at the initiative of the employer.
If the employer is ready to provide employees with work in another separate division, their dismissal can only be made on the basis of clause 7, part 1, art. 77 of the Labor Code of the Russian Federation (an employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties).
Mironova A. R., Head of the Legal Department of the Ayudar Group
The criteria for mass layoffs of workers are established by Decree of the Government of the Russian Federation of 02/05/1993 N 99 “On the organization of work to promote employment in conditions of mass layoffs.” Upon termination of an employment contract due to layoffs, those dismissed are paid severance pay in the amount of average monthly earnings, and they also retain their average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay) (Art.
178 Labor Code of the Russian Federation). Note! With the written consent of the employee, the employer may dismiss him in connection with the liquidation of the organization, reduction in the number or staff of employees before the expiration of a two-month notice period, paying additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice period for dismissal (Article 180 of the Labor Code of the Russian Federation ).
According to the Tax Code of the Russian Federation, a separate division of an organization is any territorially separate division from it, at the location of which stationary workplaces are equipped. Recognition of a separate division of an organization as such is carried out regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified division.
In this case, a workplace is considered stationary if it is created for a period of more than a month. In addition, an organization that includes separate divisions located on the territory of the Russian Federation is obliged to register with the tax authority at the location of each of its separate divisions in accordance with Art.
83 Tax Code of the Russian Federation.
It is necessary to keep in mind that by structural divisions we mean both branches, representative offices, and departments, workshops, sites, shops, etc., and by other locality - an area outside the administrative-territorial boundaries of the corresponding locality.
Thus, if an employment contract with an employee specifies a specific structural unit and its address as the place of work, and the employer offers him work in separate units located in other cities, this will be a transfer, not a relocation, since the structural units are located in another terrain.
- offer the employee another vacant position (part 3 of article 81, part 1 of article 180 of the Labor Code of the Russian Federation);
- formalize the transfer of those employees who agreed to take other positions (Article 72.1 of the Labor Code of the Russian Federation);
- notify the trade union (if there is one in the organization) about the upcoming layoff and report this to the employment service (part 1 of article 82 of the Labor Code of the Russian Federation, paragraph 2 of article 25 of the Law of April 19, 1991 No. 1032-1);
- agree with the trade union (if there is one in the organization) on the decision to dismiss employees who are members of the trade union (Part 2 of Article 82 of the Labor Code of the Russian Federation);
- pay severance pay and compensation (Article 178, Part 3 of Article 180 of the Labor Code of the Russian Federation);
- dismiss due to a reduction in the number or staff of employees who did not agree to take other positions (clause 2, part 1, article 81 of the Labor Code of the Russian Federation).
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Attention: it is impossible to dismiss an employee during the period of his temporary disability and being on vacation (Part 6 of Article 81 of the Labor Code of the Russian Federation). The employer is obliged to offer a job located in another area only if this is provided for collective or labor agreements, agreements.
“I refuse the offered job” or “I agree to the offered job”). Or it can be issued in the form of a statement*. Attention: it is necessary to offer the employee another available job (vacant position) during the notice period about the upcoming layoff not once, but several times.
Layoffs during the liquidation of a separate division are often of a massive nature, since in this case the employment contracts of all employees are terminated. Due to the remoteness of such structures from the parent company, the employer, even if he has the desire, is not able to offer people new places that would suit them.
Employees of such structures, as well as the management of the company itself, need to understand that both the activity and the cessation of the existence of branches have distinctive features:
- A separate division is not an independent enterprise. It does not have the legal capacity of a legal entity. It also does not bear the same responsibility as the organization itself.
- Even if the department is headed by a director or chief, he, as a rule, is only an employee. By proxy, he can represent the interests of the company (and protect them) in tax and other authorities, but his powers are limited - this also applies to personnel decisions.
- Such structures can operate in the format of a representative office, branch, or other department. Their liquidation occurs in different ways, but a clear procedure for separate units is not defined. Hence the dissimilarity in the positions of lawyers and controversial court decisions.
- Information about branches and representative offices must be noted in the statutory documents of the main organization. At their location, they must register with the tax office. In this case, information about the divisions may not be included in the constituent documentation, and the Federal Tax Service department may not be notified.
- One of the signs of a separate unit is the so-called stationary workplaces. Each of them must be created for at least a month.
What actions need to be taken?
- Notification of the employment service about the liquidation of the organization.
- Notifying employees at least 60 days (two months) in advance (according to the second part of Article 180 of the Labor Code of the Russian Federation). This applies to both main workers and part-time workers.
- Creation of dismissal orders.
- Each employee is paid severance pay, wages for days worked, compensation for vacation that the employee did not take. Severance pay is needed to replace earnings. The benefit should be in the amount of an average monthly salary or two weeks if the work is seasonal.
- Entry in work books (if lost, can be restored).
All stages, including severance pay, take a lot of time. In this regard, difficulties arise when liquidating an enterprise. And the larger it is, the more difficult it is to carry out this procedure.
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Liquidation: we make the decision together
As a rule, the liquidation of a legal entity involves holding a general meeting, during which the possibility of liquidation as such is discussed, and a decision is made on who to include in the commission responsible for this process. The minutes of the meeting must indicate the reasons for the liquidation and the person appointed as the chairman of the committee.
In addition, the general meeting considers:
- timing of liquidation;
- order of procedures;
- methods and terms within which notices of liquidation of an organization are sent to creditors.
Once a commission is elected, its chairman receives full authority to conduct business on behalf of the organization. Typically, the liquidation of a legal entity is entrusted to the head of the company, a staff lawyer, or the chief accountant, but selected persons from among the founders can be included here. It is customary to choose the head of the company as the chairman.
Speed of enterprise liquidation
Typically, the liquidation period of any enterprise is quite long. In some cases, it takes several years to complete the necessary documents, pay benefits after layoffs, make payments on loans and compensation for other types of obligations.
There is no maximum period for this procedure. What is the minimum? Just a couple of months.
For a municipal enterprise, the deadlines may be extended due to the above problems.
The minimum duration of the procedure is set at two months because this is exactly the amount of time that should be enough for all creditors of the liquidated enterprise to submit an application for compensation.
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Notification of social security authorities
In the event that the employer did not consider it necessary to respect all the rights of the organization’s employees or violated the terms or rules of notification, as well as other requirements prescribed in the Federal Law, the employee whose rights were violated may appeal to a judicial authority.
Then, if the guilt of the first is proven, the employer will have to bear an administrative penalty. Namely, he will be obliged to provide the employee with a new job and pay compensation for moral damage.
Reduction of staff due to the termination of the activities of a legal entity is a complex and time-consuming process. Therefore, you should not neglect the requirements and recommendations in order to avoid even greater difficulties.
In accordance with the current legislation of the Russian Federation and the Labor Code, the organization is obliged to send a notification to the social protection authorities, for example, to the employment center, that the organization is closing and all employees are losing their jobs.
Notice period:
- in sixty days, if the company employs no more than fifteen people;
- in ninety days, if more than fifteen people are employed, that is, there are many of them;
- fourteen days in advance if the individual entrepreneur is closed.
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How quickly does liquidation of a company take place?
But the speed of completing the procedure in each case will be determined individually by the liquidation commission.
After notification that employees have been laid off, it is necessary to pay each of them severance pay. This is the procedure for liquidating an enterprise.
After the reduction has occurred and all compensation has been paid and severance pay has been assigned, it is also necessary to complete the procedure. And all this takes time.
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Dialogue with a lawyer: Liquidation of LLC and individual entrepreneur
Required documents
First of all, you need an order to dismiss all employees of the company. It must arrive and be signed by each of them.
Filling out such a document is carried out according to the form approved by the Federal Statistical Service of the Russian Federation, that is, according to the T-8 form.
When drawing up an order, the head of the organization must take into account that the time from the day of notification of employees about the layoff to the day of the layoff itself should not be less than sixty days.
A member of the enterprise liquidation commission has the right to sign this document. As soon as it is received, the paper is recorded in the registration journal. After this, each employee also signs the original document, that is, confirmation of familiarization with the order. All people working at the enterprise should receive a copy of the paper.
It is not acceptable if the documentation does not contain the signature of one of the employees.
The final stage of the reduction that occurs due to the liquidation of the organization is the registration of work books. The owner of the company, who has the authority to terminate employment contracts, makes an entry in the work book about the dismissal, enters there serial numbers, the day and reason for the dismissal, as well as what became the basis for the dismissal.
During the closure of the company, dismissal occurs in accordance with clause 1 of Article 81 of the Labor Code of the Russian Federation. A person receives his work book in person against signature directly on the day of dismissal (in some situations it can be sent by mail).
First of all, an order is needed to dismiss each employee of the organization.
The order must be delivered and signed by all employees.
This type of document should be filled out in accordance with the form approved by the Federal State Statistics Service (form T-8).
We invite you to familiarize yourself with Dismissal through layoffs on the initiative of an employee
IMPORTANT! When drawing up an order, the employer must take into account that the time period from the date of notification of dismissal to the date of immediate reduction must be at least two months.
A member of the liquidation commission has the right to sign such an order. After receiving the signature, the document is recorded in the registration journal. Then each employee signs the original document, which confirms familiarization with the order. All company employees are required to receive a copy of the document.
REFERENCE! The absence of any signature of the employee (upon notification, familiarization or on the receipt) is unacceptable!
The final stage of reduction in connection with the liquidation of an organization is the registration of work books. The owner of the organization, who has the authority to terminate the employment agreement, enters in the book the serial number, date and reason for the dismissal of the employee, as well as the grounds as a result of which the dismissal was made.
When liquidating an enterprise, dismissal occurs on the basis of the first paragraph of Article 81 of the Labor Code. The book is returned to its owner against signature in person directly on the day of the layoff, or in some cases sent by mail.
The legality of termination of employment upon liquidation of a company will depend on the correctness of the documents. First of all, this applies to the initial stage of dismissal:
- a written warning is issued - this document is given personally to each employee against signature, and if receipt is refused, a commission act is drawn up;
Sample notice of dismissal due to liquidation
- the order for the upcoming dismissal must contain a reference to the liquidation of the company - if after the dismissal it is revealed that the company continues to operate, the employees will be reinstated by a court order;
Sample order of dismissal due to liquidation
- during the period of validity of the warning (2 months), dismissal is allowed on other grounds recorded in the Labor Code of the Russian Federation - at the initiative of the employee, for violation of labor discipline, by agreement of the parties, etc.;
- dismissal is permitted no earlier than two months from the date of delivery of the warning - if this period is violated, the dismissal is considered illegal.
The actual liquidation of an enterprise can be registered with the Federal Tax Service much later than the dismissal of employees (this is due to the need to comply with the bankruptcy procedure and settlement with creditors). A violation of the dismissal procedure on this basis will be established only if the enterprise returns to normal activities, starts hiring personnel again, and withdraws documents from the Federal Tax Service.
Payments due are settled no later than the date of dismissal, including the following types of compensation:
- severance pay - in the amount of monthly remuneration;
- full payment of wages, bonuses, allowances, vacation pay and other types of payments specified in the law or internal documents of the enterprise;
- two months’ salary – if the employee has not been hired for a new job within two months;
- earnings for the third month - if there is a decision from the employment department in which the dismissed citizen was registered in a timely manner;
- other compensation payments provided for by the company’s internal documents.
For citizens living and working in the RKS or MKS, the period for payment of earnings can be increased to 6 months (subject to registration with the employment department).
In this case, employees with higher qualifications will have a priority right to obtain another job, as well as:
- persons with family obligations or dependents;
- citizens who do not have another able-bodied or employed person in their family;
- employees who were injured or ill while working at this enterprise;
- disabled people of WWII and other combat operations;
- citizens aimed at improving their skills without interruption from work;
- other categories of specialists specified in local labor acts.
If they agree to the transfer, employees are not fired, but appropriate changes are made to their employment contract. If the entire enterprise is subsequently liquidated, the transferred employees are subject to dismissal according to the general rules - with written notice and payment of severance pay.
Liquidation of non-profit enterprises
If the liquidation of non-profit organizations is voluntary, then the following should be taken into account:
1. The enterprise must repay all debts to extra-budgetary funds and the budget.
2. It is necessary to check the data on taxes and fees with the tax office, and, if necessary, pay the missing amounts.
3. You should be prepared for the fact that the tax authorities may conduct an extraordinary audit. It may not exist if the company submitted tax reports on time and paid all taxes.
4. When the liquidation of the organization comes to completion (after payment of all state fees and debts), the current account is closed.
5. The PF should provide reporting and other individual documents before the day when the decision was made to terminate the functioning of the company.
