Features of dismissal during enterprise reorganization

Author of the article: Anastasia Ivanova Last modified: January 2020 1259

Transformation of the subject of activity always entails quite large-scale changes. In particular, such a process affects ordinary workers through the termination of their employment contract. However, dismissal during the reorganization of an enterprise requires compliance with special legal norms, which cannot be ignored. We are talking about both documenting the process and compensation payments, which in this case are due to employees.

Types of reorganization

According to civil law, the following possible types of reorganization of legal entities are distinguished:

Any such changes in the company are subject to mandatory state registration. And they always affect working employees, some of whom have to be fired. At the same time, the statutory deadlines for notifying employees about the upcoming reorganization are not established, with the exception of the case of an upcoming staff reduction, in which case employees are notified in the order of job reduction.

Staff Notification

When a company is separated, merged or transformed, a legal entity ends its production activities, which always entails the dismissal of employees. Before this, the employer is obliged to notify all employees in writing about future changes. The notice should be drawn up in two copies, one of which is given to the employee, and the citizen signs on the other, confirming the fact of receipt of the notice and familiarization with the information contained in it.

All employees must receive notice 2 months before the start of the reorganization. This period allows the specialist to find a new job, and the employer has the opportunity to prepare the documentation necessary for the proper dismissal of the employee.

In such a situation, the legislation exempts citizens from the mandatory two-week work period, that is, every employee who is laid off can quit earlier. At the same time, the application indicates a reduction in staff as the basis for terminating cooperation.

Grounds for dismissal

Reasons for dismissal during enterprise reorganization may include:

• reduction in the number of employees and positions;
• the employee’s lack of desire to continue working at a new enterprise or under changed terms of the contract;
• the appearance of another owner.

In the first case, an employee with good professional training, extensive experience, and high performance indicators will have a more advantageous position. In the second option, the employee simply writes a statement about termination of professional duties due to changes in the terms of the agreement and reorganization of the enterprise. In the third case, the manager and his deputies and the chief accountant may lose their positions.

The following categories of employees can feel calm during the formation of a new organization and not be afraid of dismissal during reorganization:

1. Representatives of the fairer sex who are pregnant or on maternity leave or on maternity leave to care for a child up to one and a half or three years old.
2. Vacationers (for example, those on annual vacation or those who left on their own initiative without pay, or who took study leave).
3. A parent (guardian) who is solely responsible for raising a child under 14 years of age or a disabled child under 18 years of age.
4. Trade union members.

It is worth remembering that the reorganization of an enterprise in itself is not a basis for dismissal (unlike, for example, liquidation); employees can be dismissed during reorganization only upon their written refusal on the basis of clause 6, part 1 of Art. 77 Labor Code of the Russian Federation.

Attention! Labor legislation does not allow dismissing the above-mentioned employees during the transition period. If the position held by such an employee is reduced, he must be offered another job (Part 1 of Article 82, Part 2 of Article 180 of the Labor Code of the Russian Federation), and if he refuses such a position, the employee must be fired under Clause 2 of Part 1 of Art. .81 Labor Code of the Russian Federation. An exception is when the enterprise is liquidated or such employee himself has expressed in writing his desire to resign.

There are also employees who, compared to others, have a preferential right to continue working if the issue of staff reduction arises. These include:

• combat veterans;
• persons who support two or more dependents;
• citizens who have no other working persons in their family;
• workers who were injured at work in this organization;
• employees sent by the head of the enterprise to study in order to improve their qualifications.

Important! When reducing the number of jobs at a reorganized enterprise, the employer is obliged to take into account the characteristics and rights of each of its employees.

Documentation accompanying the reduction

Any type of reform of a legal entity, be that as it may, must be confirmed by the necessary papers. A typical set of papers includes:

• order on the reorganization of a legal entity - this contains amended information about the institution, a description of the form of reform, the day of making entries in individual cards and work books of employees, as well as information about when employees should receive notice of layoffs.

This paper represents the basis for continuing staff reductions and their immediate dismissal;

• notification that the employer has changed, there has been a layoff, or changes have been made to employment contracts. As a rule, such documents are made in two copies. The employee must put his signature on them, confirming the fact of his familiarization.

The notice includes the following information:

1. The day of the upcoming dismissal, as well as its grounds.
2. A list of alternative positions that could be filled by a particular person being dismissed.
3. All the necessary signatures affixed by the authorities.

This document is intended to become a fact confirming compliance with the law when reorganizing the company.

• dismissal order. It must include the following information:

1. All required details.
2. Link to the number and day of conclusion of the contract to be terminated.
3. The day of leaving work.
4. Full name of the employee, his number in the report card and position held.
5. Reason for dismissal.

Based on such an order, dismissal is carried out, and all payments due to the employee are provided;

• work book and individual card. Similar to the entry on the reorganization of a legal entity made in the order, you need to make notes about the reduction in the work book and individual card. The record includes the reason for termination of the employment agreement and a reference to the Labor Code. These papers are provided to the employee at the time of his departure from work. They will help ensure the legality and compliance with the legality of the process of reducing employees.

Dismissal procedure

In general, the dismissal procedure looks like this:

• preparation of necessary documents for the upcoming procedure (including issuance of an order);
• informing the company's employees about the upcoming reorganization (usually done in writing and signed two months before the event);
• if the employee does not agree to continue working in the changed conditions, he has the right to submit an application and resign, and he has the right to receive appropriate compensation;
• an order is issued to terminate employment, indicating the date of termination of work and the amounts of payments made (compensation for unused vacation days, wages and other amounts provided for in the agreement);
• the resigned employee is given his work book, a salary certificate and a full payment is made.

Labor legislation gives the new owner of the organization the right to change management. In this case, events develop as follows:

• notification of reorganization measures and intention to dismiss;
• issuing an order to terminate labor functions;
• full payment and issuance of necessary documents to the employee.

Attention! It is not at all necessary to work 14 days upon dismissal due to reorganization.

Features of dismissal

In the event of termination of employment relations during the reorganization of the organization, there are some features that must be taken into account by the employer:

• dismissal of the management team on this basis is possible within three months from the date of reorganization;
• in the event of a planned termination of employment, the redundant employee must be offered another vacant position, to which, if the latter agrees, he is transferred;
• dismissal due to reorganization measures is not carried out without the knowledge and consent of the employee;
• it is necessary to remember that there are categories of specialists who cannot or are difficult to dismiss due to layoffs;
• an employee who decides to leave the enterprise on this basis has the right to express his decision to change and remain working, albeit in a different position, the employer cannot fire him;
• when there is a change of owner, the new owner of the enterprise cannot fire employees (except for management) or change the labor functions of employees;
• During the reorganization, it is impossible to force staff to write letters of resignation on a different basis, for example, at their own request, in order to save money;
• the employee may terminate the employment relationship earlier than two months; this is not prohibited by law;
• warning about the reorganization was given less than 2 months in advance, or the employee was dismissed before the end of such events.

Violation of these rules may give rise to an employee whose rights have been violated filing a claim in court or a complaint to regulatory authorities. As a result, this will lead not only to the reinstatement of the incorrectly dismissed employee at work, but also to the recovery of monetary compensation from the employer in his favor.

Guarantees for employees

If there is a reorganization of a legal entity, it is likely that there will be downward changes in the staffing table, as well as the dismissal of some individuals.

Employees who have been laid off must be warned about this, and this must happen no later than sixty days from the date of the decision on reorganization.

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Article 178 of the Labor Code of the Russian Federation contains information about the process of dismissal of people who were laid off during reorganization. It says here that such employees have the right to receive full severance pay. In addition, the company must provide them with payments for the time they spend searching for a new job, but no more than sixty days after calculating the average salary.

It happens that during a reorganization it is not the positions that change, but the employee’s job responsibilities. In such a situation, he will either have to sign a paper agreeing to the new conditions, or refusing and leaving the workplace of his own free will.

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Payments

Upon termination of employment relations in connection with the reorganization of the company, the following payments are made in the usual manner (Part 4 of Article 84.1, Part 1 of Article 140, Part 1 of Article 127 of the Labor Code of the Russian Federation):

• wages for days worked (salary, required bonuses);
• severance pay (in the amount of payment for 2 months, unless an increased amount is established by agreement - in case of staff reduction or by agreement of the parties);
• compensation for unused vacation days;
• other amounts established by the employment contract (both individual and collective).

Important!
The required payments are made before the actual termination of professional duties, and not after. Failure to comply with this rule is a violation of labor laws. Restrictions on the payment of severance pay apply to managers, their deputies, chief accountants and members of collegial executive bodies of state corporations, state-owned companies, business entities, where more than half of the authorized capital is state or municipal ownership. The maximum limit of the amount is also established for the management of state extra-budgetary funds, state and municipal institutions and unitary enterprises. The amount of the benefit cannot be higher than three times the monthly salary.

Nuances of dismissal during various enterprise reorganizations

Reorganization of a company in any way affects the existing structure of labor relations and the rights of employees.

Reorganization in the form of merger

During the merger procedure, employees of the acquired company, as a rule, are not subject to dismissal. However, in the event of such a transformation, the terms of the employment contract usually change:

• location of the new enterprise and workplace;
• schedule;
• conditions for performing professional duties, etc.

Therefore, an employee who is not ready for such changes or does not agree with them has the right to terminate the employment relationship.

Reorganization in the form of transformation

The purpose of reorganization in the form of transformation is to improve the competitiveness and productivity of the enterprise in the market. Employees of such an organization are usually not warned about such a metamorphosis and are not subject to dismissal. However, the working conditions established by the employment contract may change. Therefore, dissenting employees have the right to terminate their professional relationship with the employer.