Rules for payments to employees upon liquidation of an enterprise. Termination of an employment contract upon liquidation of an organization

Liquidation of an enterprise means that the organization completely completes its activities and does not need human resources. This situation is a legal basis for termination employment contract at the request of the employer in accordance with the first paragraph of the article.

The dissolution of an organization is associated with serious legal consequences, in particular for the organization's personnel. In this case, releasing employees from duties involves providing them with guarantees and making payments approved by law.

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What payments and benefits are required by law, as well as what nuances there are associated with receiving them, you need to know in advance.

Main provisions

General procedure

With the termination of the organization’s activities, all concluded employment contracts and compensation payments to employees of the enterprise are terminated, including:

• wages with bonuses and allowances before immediate dismissal;
• for unused vacation periods;
• severance pay equal to average monthly earnings.

Notification of employees about the termination of employment contracts is carried out in in writing behind 60 days. You can terminate it before completion 2 months, but with the consent of the employee and with the payment of additional compensation established by law.

Disputes regarding payments that are due to a dismissed person in connection with the dissolution of the organization are resolved by payment of an undisputed amount of money by the employee on the day of termination of the contract. If within a thirty-day period after dismissal the employee does not find a new job and becomes temporarily disabled, he has the right to apply to his previous employer for benefits.

Dismissal due to liquidation of the organization presupposes the preservation of the monthly average wages, which is paid over a period not exceeding 60 days from the moment of termination of the employment contract.

Three months before the organization ceases to operate, the owner can send a notice to the trade union in accordance with the article of the Labor Code, which will contain data on the reason for termination of employment contracts, data on personnel and the timing of their dismissal. This clause is optional, since the consent of the trade union is not required.

Controversial situations in payments to employees during the liquidation of an enterprise

The first months of dismissal

First 30 days after dismissal, the owner of the organization pays the employee severance pay equal to the average monthly salary. The next month the payment is repeated if the fired person was unable to find a job. To confirm this fact, the employer is provided with a work book and a statement written in his name.

The third month after dismissal is also paid if the employee is not employed by the central employment center. The service issues a corresponding resolution, which must be provided along with the work book to the former employer.

To formalize the status of unemployed, a package of documents is sent to the labor exchange, including:

• passport;
• diploma of completion of studies at a university or college;
• employment history;
• salary certificate filled out according to the TsZN form for the last quarter.

The employee comes to receive the payments required by law before the organization is excluded from the general register of legal entities. persons Payments to employees upon liquidation of an enterprise are made on the day of application or the next one, as well as when wages are paid.

Compensation

Dismissal in connection with the abolition of an organization is carried out at the will of the owner of the enterprise. This means that all staff will be laid off, regardless of whether they have additional security.

The following categories of employees are subject to dismissal:

• on vacation or temporarily disabled;
• those who went on maternity leave;
• raising children up to 3 years;
• single parents raising a child up to 14 years old or a child with a disability up to 18 years old;
• minor workers.

Employees dismissed at the initiative of the owner of the enterprise are paid compensation for unused vacation periods. The amount is calculated using a formula in which each day of vacation is multiplied by average earnings per day. According to the employee's annual 28 days paid leave.

When an employee has not worked a full working year, vacation compensation is calculated in accordance with the number of months worked by the employee. Cash payments for unused vacation are only due to those who have officially worked at least 5 months.

The owner of the organization has the right to round up the number of vacation days not used by the employee in favor of the latter.

Contributions for insurance against occupational diseases and accidents are not calculated from these payments. Personal income tax is withheld from compensation for unused vacation.

Benefits

Upon termination of the employment contract, the owner of the organization pays the employee the following amounts of money:

• Salary for performing duties until the moment of dismissal.
• Payment for unused vacation periods during work.
• Payment for early termination of an employment contract, which is equal to the average monthly salary. It is calculated in proportion to the number of days before the expiration of the warning period about the termination of the organization’s activities and the termination of the contract for this reason.
• Severance pay in the amount of average monthly earnings. It is also available to part-time workers.
• Payment in the amount of the average salary per month during the period of employment.
• Payment of salary in the average amount for the third month is carried out upon provision of a certificate from the Employment Center confirming the absence of official employment.

It is written that if benefits due to an employee are not paid on time, the owner of the enterprise pays them along with interest.

Interest is calculated using the Bank of Russia refinancing rate current for 2019.

Early payments

The Labor Code strictly regulates the dismissal of employees in connection with the cessation of the enterprise's activities, which requires timely warning of personnel about this situation.

If the process of terminating the employment contract is carried out earlier, the employee is paid additional compensation. Early termination of this document is possible only with the written consent of the employee, confirmed by his signature.

Calculation of compensation is carried out in proportion to the number of days before the last date of notice of dismissal in connection with the liquidation of the organization. Other cash payments are produced in the usual manner. Payments are made on the day of dismissal or the following day. If the employee was absent during the specified period, then the money is paid to him upon first request.

Those released for wages include compensation for early dismissal. Payments for them are carried out in accordance with the rules and insurance payments are not accrued on them. Additional compensation is not subject to personal income tax.

Guarantees of the law

(Tsypkina I. S.) (“Civilist”, 2011, N 3)

TERMINATION OF AN EMPLOYMENT CONTRACT DURING LIQUIDATION OF AN ORGANIZATION: SOME PROBLEMS OF THEORY AND PRACTICE OF APPLICATION

I. S. TSYPKINA

Tsypkina Irina Sergeevna, candidate legal sciences, associate professor, associate professor of the department labor law and social security rights of the Moscow State legal academy them. O. E. Kutafina.

In the context of the financial and economic crisis, problems associated with the social protection of workers are becoming more acute, in particular, when terminating an employment contract at the initiative of the employer in connection with the liquidation of the organization. In order to organize monitoring of the dismissal of workers in connection with the liquidation of organizations by the Ministry of Health and social development On November 28, 2008, Order No. 682 was adopted<1>, according to which the executive authorities of the subjects Russian Federation, exercising the delegated powers of the Russian Federation in the field of promoting employment, it is recommended to conduct weekly monitoring of the dismissal of workers in connection with the liquidation of organizations, and the Department of Employment and Labor Migration is recommended to conduct a weekly analysis of the state of the labor market, taking into account data from monitoring the dismissal of workers in connection with the liquidation of organizations or downsizing number or staff of employees, as well as part-time workers. In connection with the increase in the number of liquidated organizations, Order of the Ministry of Health and Social Development of Russia dated March 3, 2009 N 85n provides for the provision of monthly compensation payments unemployed women with children under three years of age, dismissed due to liquidation<2>. In the General Agreement between all-Russian associations of trade unions, all-Russian associations of employers and the Government of the Russian Federation for 2011 - 2013<3>it is stated that economic modernization and innovative development should create demand for qualified workers and be accompanied by the creation of effective jobs with high productivity and quality of labor, safe conditions labor and dignity wages. Thus, the problems associated with mass layoffs of workers in the context of the emergence of a market and competition do not go unnoticed by the state. At the same time, on January 12, 2011, at the 7th Congress of the FNRP, it was noted that the Russian economy cannot afford to preserve backward industries<4>. In this connection, it is obvious that in the future events will be carried out in Russia to liquidate organizations, covering hundreds and thousands of workers. But if under normal operating conditions market economy there were and are many practical issues related to the procedure for dismissing employees on this basis, then in the present period they become especially relevant. ———————————<1>See: Order of the Ministry of Health and Social Development of the Russian Federation dated November 28, 2008 N 682 “On monitoring the dismissal of workers in connection with the liquidation of organizations or a reduction in the number or staff of workers, as well as underemployment of workers” // Bulletin of Labor and Social Legislation RF. 2009. N 2.<2>See: Order of the Ministry of Health and Social Development of the Russian Federation dated March 3, 2009 N 85n “On organizing work to provide monthly compensation payments to unemployed women with children under three years of age, dismissed due to the liquidation of the organization” // Russian newspaper. 2009. April 24<3>Russian newspaper. 2011. 11 Jan.<4>http://top. rbc. ru/society/12/01/2011/526497.shtml

As is known, liquidation legal entity can be either voluntary or forced. It is carried out in the manner established by the Civil Code of the Russian Federation and special federal laws on individual legal entities. It should be noted that issues related to the procedure for applying to the arbitration court with claims for the liquidation of organizations of the relevant state bodies and bodies local government, the decisions made by the arbitration court are not summarized in a single normative legal act, and therefore, in addition to the Civil Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation and other special laws, it is advisable to be guided by the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 13, 2000 No. 50 “Review of dispute resolution practice, related to the liquidation of legal entities ( commercial organizations)» <5>. ——————————— <5>Bulletin of the Supreme Arbitration Court of the Russian Federation. 2000. N 3.

Despite all the difficulties that accompany the liquidation procedure of organizations in accordance with civil law, the Labor Code of the Russian Federation clearly approaches issues related to the termination of an employment contract in this case. Based on the relevant norms of the Labor Code of the Russian Federation, the following main provisions can be distinguished. Each employee is notified of the upcoming dismissal in connection with the liquidation of the organization personally and against signature at least two months before the dismissal (Part 2 of Article 180 of the Labor Code of the Russian Federation). An employee who has entered into an employment contract for a period of up to two months must be warned about the upcoming dismissal in connection with the liquidation of the organization three calendar days in advance, and an employee employed for seasonal work, the employer must notify the employer of the upcoming dismissal due to the liquidation of the organization in writing against signature at least seven days in advance. calendar days(Part 2 of Article 292 and Part 2 of Article 296 of the Labor Code of the Russian Federation). If there is a threat of mass layoffs, the employer, taking into account the opinion of the elected trade union body, takes necessary measures provided for by the Labor Code of the Russian Federation (in particular, Part 5 of Article 74 of the Labor Code of the Russian Federation), other federal laws, collective agreements, and agreements. The criteria for mass layoffs should be defined in sectoral and/or territorial agreements. Upon termination of an employment contract due to the liquidation of an organization, the dismissed employee is paid severance pay in the amount of average monthly earnings, and he also retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay). In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month by decision of the employment service body if, within two weeks after the dismissal, the employee applied to this body and was not employed by it (parts 1 and 2 of Art. 178 Labor Code of the Russian Federation). Employer with written consent the employee has the right to terminate the employment contract with him before the expiration specified 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 period (Part 3 of Article 180 of the Labor Code of the Russian Federation). An employee who is dismissed from an organization located in the Far North and equivalent areas due to the liquidation of the organization is paid a severance pay in the amount of average monthly earnings, he also retains the average monthly salary for the period of employment, but not more than three months from the date of dismissal (including severance pay). In exceptional cases, the average monthly salary is retained by the specified employee during the fourth, fifth and sixth months from the date of dismissal by decision of the employment service body, provided that in month period after dismissal, the employee applied to this body and was not employed by it (Article 318 of the Labor Code of the Russian Federation). When an employment contract with an employee engaged in seasonal work is terminated due to the liquidation of the organization, severance pay is paid in the amount of two weeks' average earnings (Part 3 of Article 296 of the Labor Code of the Russian Federation). For employees who are orphans left without parental care and released from organizations due to liquidation, the current legislation establishes additional guarantees. In this case, employers are obliged to provide at the expense own funds necessary professional education these workers with their subsequent employment in this or another organization (Article 9 of the Federal Law of December 21, 1996 N 159-FZ “On additional guarantees for social support for orphans and children without parental care”<6>). ——————————— <6>NW RF. 1996. N 52. Art. 5880.

In accordance with paragraph 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 “On employment in the Russian Federation”<7>when making a decision on liquidation of an organization or termination of activities by an individual entrepreneur and possible termination of employment contracts between the employer and the organization no later than two months in advance, and the employer - individual entrepreneur no later than two weeks before the start of the relevant activities, they are required to notify the employment service authorities in writing, indicating the position, profession, specialty and qualification requirements to them, the conditions of remuneration for each specific employee. ———————————<7>NW RF. 1996. N 17. Art. 1915.

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, the termination of employment contracts with employees of these structural units is carried out according to the rules provided for cases of liquidation of the organization. It follows from this that if a branch or representative office is located in the same area, then in this case the employees are subject to dismissal according to the rules of clause 1, part 1, art. 81 of the Labor Code of the Russian Federation (Part 4 of Article 81 of the Labor Code of the Russian Federation). Thus, labor legislation does not distinguish between forced and voluntary liquidation of an organization. There is a uniform procedure established by the Labor Code of the Russian Federation for all employees upon termination of an employment contract under clause 1, part 1, art. 81 of the Labor Code of the Russian Federation, with the exception of persons performing work for a period of up to two months, and seasonal workers. However, despite the apparent simplicity and clarity of the above norms, beyond labor legislation There remain a number of controversial and ambiguously resolved issues in practice related to the implementation of measures to terminate the employment contract with employees under clause 1, part 1, art. 81 Labor Code of the Russian Federation. The organization is considered liquidated from the moment the corresponding entry is made in the Unified State Register. Consequently, the date of dismissal of each employee must coincide with this date and be the same for everyone, which seems quite logical, because otherwise the grounds for terminating the employment contract under clause 1, part 1, art. 81 Labor Code of the Russian Federation no. This is basically what jurisprudence is based on: Supreme Court of the Russian Federation, as well as district, regional and other courts. Thus, in the Determination of the Supreme Court of the Russian Federation dated July 11, 2008 N 10-В08-2<8>stated that recognition in in the prescribed manner or declaring a person bankrupt does not mean the liquidation of the organization, but only entails the beginning of the liquidation process and, therefore, the termination of employment contracts with employees on this basis at the time the organization is declared bankrupt in this case should be considered unlawful. The same definition states that since the liquidation of the enterprise was not completed at the time of the plaintiff’s dismissal, there were no grounds for dismissal. The ruling of the St. Petersburg City Court overturned the decision of the Leninsky District Court of St. Petersburg to change the date of dismissal (case No. 2-1271/08 of August 11, 2008). By order of October 2, 2007 N 194-K, K. was dismissed from the post of director of the St. Petersburg State unitary enterprise. On this day, the defendant did not send the plaintiff an order of dismissal, and did not otherwise notify the plaintiff of his dismissal. The plaintiff was familiarized with the order of dismissal on May 4, 2008. On November 23, 2007, an entry was made into the Unified State Register of Legal Entities about the liquidation of the legal entity - St. Petersburg State Unitary motor transport enterprise. The panel of judges believes that the court’s conclusion to change the date of dismissal to the date of entering information into the Unified State Register of Legal Entities was made due to the incorrect application of the provisions of Art. Art. 234, 394 of the Labor Code of the Russian Federation, from which it follows that changing the date of dismissal is possible if the grounds or procedure for dismissal are contested. When reconsidering the case, the court should take into account the above, clarify the grounds for the claim, namely whether the plaintiff challenged the legality of the dismissal and whether there are grounds for making changes to the work book, provided for in Art. 394 Labor Code of the Russian Federation. The court should also take into account that the impossibility of continuing labor relations in connection with the liquidation of the organization does not in itself mean that the date of dismissal is set from the time the organization ceases to operate<9>. ——————————— <8>Bulletin of the Supreme Court of the Russian Federation. 2009. N 3.<9>SPS "ConsultantPlus".

By the decision of the Sverdlovsk District Court of Belgorod on May 13, 2010, it was recognized illegal dismissal K. from production division"Southern heating network» OJSC Belgorod Heating Network Company in connection with the liquidation of the organization, according to which persons dismissed from organizations under clause 1, part 1, art. 81 of the Labor Code of the Russian Federation changes the date of dismissal to the date of actual exclusion of the organization from the Unified State Register of Legal Entities<10>. ——————————— <10>SPS "ConsultantPlus".

There are quite a lot of violations of labor legislation in law enforcement practice, and the fact is that the Labor Code of the Russian Federation is actually limited to only three articles in relation to the considered grounds for termination of an employment contract, one of which indicates this very basis (Article 81 of the Labor Code of the Russian Federation), and two others - only the procedure for warning about upcoming dismissal and the procedure for paying severance pay are disclosed (Article 178 and Article 179 of the Labor Code of the Russian Federation). Civil legislation provides for other deadlines for the liquidation of organizations (which, apparently, cannot touch upon issues related to the procedure for dismissal of workers established by the Labor Code of the Russian Federation) - this, in particular, notifies the debtor's employees of the upcoming dismissal no later than one month from the date of commencement of bankruptcy proceedings ( Article 129 Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)”<11>. In this case, the bankruptcy trustee must submit a report on his activities to the meeting of creditors at least once a month, which contains information about the number of dismissed employees of the debtor. The question arises: what grounds for terminating an employment contract in this case should be contained in their work book? In the same article, the term “redundant” employees is indicated in parentheses, but in this case we are talking about the liquidation of an organization, and not about reducing the number or staff of employees, which are completely different things. On the other hand, how can employees be fired if the employing organization has not yet been liquidated, and perhaps will not be liquidated, since it is not at all necessary that bankruptcy proceedings end with a decision to liquidate the legal entity. The arbitration court may adopt a judicial act refusing to declare the debtor bankrupt, a ruling on the introduction of financial rehabilitation or the introduction of external management, etc. Thus, neither the appeal of a state body or local government body, nor creditors, nor even the decision on bankruptcy proceedings itself do not provide grounds for termination of employment contracts under clause 1, part 1, art. 81 Labor Code of the Russian Federation. ———————————<11>NW RF. 2002. N 43. Art. 4190.

If we consider not forced liquidation, but the most general order, installed Civil Code to liquidate a legal entity, the moment of dismissal of employees must be linked to the period from the preparation of the interim balance sheet to the beginning of the preparation of the liquidation balance sheet. Payment of sums of money to creditors of a liquidated legal entity is made by the liquidation commission in accordance with the interim liquidation balance sheet, starting from the day of its approval, with the exception of creditors of the fifth priority, payments to whom are made after a month from the date of approval of the interim liquidation balance sheet. When declaring a legal entity bankrupt and determining the amount of claims for payment of severance pay and wages for persons working or who worked under an employment contract, the outstanding debt accrued on the date the arbitration court accepted the application for declaring the debtor bankrupt, as well as interest for violation deadline payment of wages, vacation pay, dismissal payments and other payments due to the employee in the amount and in the manner established in accordance with labor legislation (Article 136 of the Federal Law “On Insolvency (Bankruptcy)”). After the liquidation commission has paid all creditors, it, in accordance with clause 5 of Art. 63 of the Civil Code of the Russian Federation must draw up a liquidation balance sheet. The liquidation balance sheet contains information about the assets that remained with the organization at the time of its liquidation and before settlements with the founders are made. Based on the liquidation balance sheet, one can judge the property that goes to the founders. The liquidation balance sheet is approved by the founders (participants) of the legal entity or the body that made the decision on liquidation, and is agreed upon with the tax authority. After its approval, a record of the liquidation of the legal entity is made in the Unified State Register. Undoubtedly, there is uncertainty regarding the date of dismissal of workers. As already noted, in accordance with the Labor Code of the Russian Federation, the basis for terminating an employment contract with employees under clause 1 of part 1 of art. 81 of the Labor Code of the Russian Federation is the liquidation of the organization itself, and a legal entity is liquidated from the moment the corresponding entry is made in the Unified State Register. According to paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”<12>grounds for dismissal of employees under clause 1, part 1, art. 81 of the Labor Code of the Russian Federation can serve as a decision on the liquidation of a legal entity, i.e. a decision to terminate its activities without transferring rights and obligations by way of succession to other persons, adopted in the manner prescribed by law. The very decision to liquidate a legal entity, as follows from the relevant norms of civil law, can be made long before the actual liquidation. Hence, in practice, termination of employment contracts with employees on the specified basis can occur (and often occurs) in several stages, which, of course, does not comply with labor legislation and judicial practice. As an option to solve this problem, it is possible to make changes to clause 1, part 1, art. 81 of the Labor Code of the Russian Federation, which can be supplemented with an indication of the “decision” on liquidation. But even in this case, various abuses regarding the rights of employees cannot be ruled out, since the decision to liquidate itself does not mean the actual liquidation of the legal entity. ———————————<12>Russian newspaper. 2006. 31 Dec.

Many problems also arise in relation to the head of the organization and the employees who are part of the liquidation commission. Those who initiated liquidation themselves appoint a liquidation commission, resolve issues related to its personnel, and in the case where liquidation is carried out by court decision, the court can assign the corresponding responsibilities to the founders (participants) themselves or the body authorized to liquidate its legal entity constituent documents. In this case, each of the commission members, if he is an employee of this organization, must also be warned of the upcoming liquidation personally against signature at least two months in advance and dismissed at the time the entry is made in the register. But the question arises: what job function will this member of the liquidation commission perform? After all, the liquidation commission is created precisely in order to liquidate the organization, and not to continue the implementation production activities Therefore, the performance of labor functions by an employee who is part of the liquidation commission is terminated. Just as the activity of the head of the organization as a leader ceases. The powers of the head of the debtor, other management bodies of the debtor and the owner of the property of the debtor - a unitary enterprise are terminated from the date the arbitration court makes a decision to declare the debtor bankrupt and to open bankruptcy proceedings. According to Art. 126 of the Federal Law “On Insolvency (Bankruptcy)”, the head of the debtor, as well as the temporary manager, administrative manager, external manager, within three days after the approval of the bankruptcy trustee, are obliged to ensure the transfer of the debtor’s accounting and other documentation, seals, stamps, material and other assets to the bankruptcy trustee. Regarding the notification of the head of the organization about the upcoming forced liquidation, the issue was resolved in Federal law“On Insolvency (Bankruptcy)”, which states that it is the bankruptcy trustee who has the right to dismiss employees of the debtor organization, including the head of the organization (Article 129 of the Federal Law “On Insolvency (Bankruptcy)”). From this we can conclude that the notice of the upcoming dismissal of the manager will be signed by the bankruptcy trustee himself. In case of voluntary liquidation, such a notice must be signed either by the owner himself or by a body authorized by the constituent documents. The next question is: what grounds for termination of an employment contract should be indicated in the work book of the head of the organization? Due to some discrepancy between the norms of civil and labor legislation and the actual practice of their application regarding the date of the proposed dismissal, the legal literature expresses the opinion that it is possible to refer to paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, but such an instruction will be legal only in case of voluntary liquidation of the organization, but in case of forced liquidation it loses all meaning. The unfortunate wording of paragraph 1 of Art. is also puzzling. 278 Labor Code of the Russian Federation. How can removal from office be at the same time the basis for termination of an employment contract, because from the point of view of labor legislation, the terms “removal” and “termination” designate completely different legal categories that entail completely different legal consequences. It is also not possible to count on the fact that the employment contract of the head of the organization will contain an indication of a court decision as the basis for terminating the employment contract when making a decision to liquidate a legal entity. Even if the condition for termination of the employment contract at the initiative of the employer is indicated as the basis for termination, if budgetary institution overdue accounts payable exceeding the maximum valid values established by the body exercising the functions and powers of the founder<13>, this basis will only apply to this specific case. ———————————<13>See: Federal Law of May 8, 2010 N 83-FZ “On amendments to certain legislative acts of the Russian Federation in connection with the improvement of the legal status of state (municipal) institutions” // SZ RF. 2010. N 19. Art. 2291.

If there are general and special grounds for termination of an employment contract, dismissal must be made on a general basis. Thus, the only correct thing would be to make an entry in the manager’s work book - clause 1, part 1, art. 81 Labor Code of the Russian Federation. Moreover, the date and grounds for termination of the employment contract must be the same for all employees of the liquidated organization. In this regard, contradictions between the norms of civil and labor legislation should be immediately eliminated. Otherwise, it is not possible to combine settlements with creditors with the date of actual liquidation of the organization. Therefore, in case of voluntary liquidation, the date of termination of the employment contract should be the date of approval of the liquidation balance sheet. In the case of forced liquidation, the date of the arbitration court’s determination to complete bankruptcy proceedings. This determination is the basis for making a record of the debtor’s liquidation in the Unified State Register of Legal Entities. In any case, this conflict can be resolved either by adopting an appropriate clarification at the level of by-laws or at the level of a resolution of the Plenum of the Supreme Court. In addition, it is advisable to exclude from Art. 278 of the Labor Code of the Russian Federation, paragraph 1 and add it to Art. 76 of the Labor Code of the Russian Federation, concerning the grounds for removal of employees from office. It is obvious that until the completion of bankruptcy proceedings, the manager must be removed from office, and then, from the date the arbitration court issues a ruling on the completion of bankruptcy proceedings, he must be dismissed under clause 1, part 1 of Art. 81 Labor Code of the Russian Federation.

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Liquidation of a company involves the complete cessation of the activities of a legal entity, and its responsibilities are not transferred to other enterprises on the basis of succession rights. As a result of the procedure, the legal entity is excluded from the Unified State Register of Legal Entities and ceases to conduct business activities.

Subsequently, the bankruptcy procedure stage of receivership, the dismissal of employees is no different from layoffs during ordinary liquidation.

An integral stage of the liquidation procedure is the dismissal of all employees. Before the closure of the enterprise, all payments to employees must be made. The liquidation commission is responsible for these actions during the closure of the company. Her responsibilities include accruing all due payments And tax collections until the moment of liquidation and final dismissal of workers.

In essence, the process of dismissing employees coincides with the termination of an employment contract due to layoffs. total number personnel. But he has one most important distinctive feature: absolutely all employees are subject to dismissal during liquidation, even those who are endowed by the state with certain social guarantees (single mothers, veterans, pregnant women, etc.).

It is important to take into account that their dismissal is allowed only during the liquidation of the enterprise, and not during the reorganization of the legal entity. In the latter case, employees can retain their positions.

Stages of dismissal of employees when closing a company

The process of dismissal when closing a company is multi-stage, it consists of the following steps:

1. A decision is made on liquidation by the founders and approval is obtained from the Tax Inspectorate. The decision on liquidation must be made in writing, or there is already a valid court decision on this.
2. Employees, the trade union and the Employment Center are notified.
3. Dismissal orders are drawn up.
4. The final payment is made and a note is made in the labor report.

It is worth noting that if, despite the decision to liquidate, the company has not closed, employees have the right to apply for reinstatement in their previous position.

Typically, not all employees quit at once. . The first to be laid off production workshops, then - administrative workers. Last but not least, dismissal concerns members of the liquidation commission.

Notifying employees before planned dismissal

According to Article 180 of the Labor Code of the Russian Federation, all employees of the enterprise must be notified of the upcoming layoff at least two months before the specified event. The dismissal of personnel cannot coincide in date with the date of closure of the enterprise due to the need to pay severance pay.

A two-month period is necessary for those being dismissed so that they can find new job. Similar notice periods are provided for the trade union and the Employment Center. If the employer does not meet the specified time frame, he faces administrative liability. Responsible persons will be fined 300-500 rubles, while for an enterprise the sanctions are more serious and amount to 3000-5000 rubles.

Employees can quit without waiting for the appointed period for terminating the contract, but only if at will. This will not in any way affect the amount of payments they are entitled to due to the reduction. On the contrary, the employee is entitled to additional compensation for the time that he did not work before the official layoff.

The form for notifying employees is not approved at the legislative level, so the liquidation commission has the right to develop it independently. This document should include the following information:

• name of the legal entity;
• Full name of the employee, his position and department;
• details of the enterprise's decision on liquidation;
• date of termination of the contract and the grounds for this.

The document is issued against signature. It is drawn up in two copies, one is given to the employee being laid off, the other with his signature remains in the custody of the employer.

The employee must confirm his/her familiarity with it. If the dismissed employee refuses to sign, the notice must be sent by registered mail with return receipt requested. Then you don’t have to worry about unfounded claims from the authorities controlling the reduction of violations of the established notice procedure for dismissal.

Employment service notification

The company must notify the employment center in writing of the mass layoff of all employees. This is required to be done upon liquidation of all organizational and legal forms (LLC, JSC) with more than 15 employees. Those. if the company has fewer people, then this step can be skipped.

The deadlines for notifying the regional employment service are as follows:

• 30 days for more than 50 people;
• 60 days – if the number of employees is more than 200.

At the regional level, different deadlines for notification may be established. The employment law also emphasizes that if liquidation involves massive redundancies, a three-month notice period is allowed.

Payment of compensation and severance pay to the dismissed person

In the process of dismissing an employee during liquidation, he is paid:

• salary and all salary debts (if any) for the time actually worked;
• monetary compensation for unused vacation (according to Article 127) and for additional leave, if it is required by law;
• compensation for early termination of an employment contract (if this period was less than 2 months after notification);
• severance pay (under Article 178).

Other payments, such as bonuses, are made only at the request of the employer.

Article 140 of the Labor Code of the Russian Federation indicates that all payments are made to the dismissed person on the day of termination of the employment contract. Or, if the employee did not work on the specified day (for example, was on sick leave), then no later than the next working day.

When calculating severance pay, the employee’s average monthly earnings for the previous two years are taken into account. But bonuses and allowances that the employee received during the period of service are not included in the calculations.

Article 178 of the Labor Code of the Russian Federation provides for material support for those dismissed from the employer until their upcoming employment. Their relationship with the former employee does not end on the day of dismissal. Severance pay must be paid for at least two more months after termination of the employment contract.

The law has one caveat: if former employees manage to find a new job before the two-month period expires, severance payments stop. The Labor Code provides grounds not only for shortening periods of material support, but also for its extension.

Thus, the two-month period can be extended by another month if, 14 days after dismissal, the employee contacted the employment service and two months from that moment still could not find a job. objective reasons. This payment is made from the funds of the Employment Center.

Workers in the Far North receive severance pay for a minimum of three months, and a maximum of six months according to the decision of the Employment Service.

Compensation payments are subject to personal income tax on a general basis in the amount of 13%. But they are charged all payments for pension and social insurance. If necessary, the employer withholds alimony from the compensation amount.

Entry into the work book upon liquidation of an enterprise

When dismissing personnel due to liquidation, an entry about this must be made in the work book with reference to the Labor Code. The book must be issued to employees directly on the day of dismissal. If an enterprise does not have the opportunity to personally issue a document to an employee (for example, due to the fact that he did not show up for work on the last day), then in order to exclude claims, it is necessary to send a notification to the employee about the need to receive a work permit or to obtain his consent to send it by email. mail.

In the labor report, in the reason for dismissal field, a note is made that the employee was dismissed due to the liquidation of the enterprise with reference to clause 1 of Art. 81. Labor Code of the Russian Federation. It is also necessary to make a note about the termination of the employment contract.

Sometimes unscrupulous employers, in order to save on severance payments, indicate other grounds for separation in the employment contract: for example, their own desire (Article 77, paragraph 3 and Article 80) or by agreement of the parties (Article 77, paragraph 1, Article 78) . But according to the law, the employer will be able to do this only with the consent of the parties.

Refuse to sign the dismissal order

Article 841 of the Labor Code specifies mandatory notification to an employee with a dismissal order. He must write on the document “I have read the order, date and signature.” Of course, no one has the right to force a person to sign; he can refuse. In this case, the refusal must be recorded and a report drawn up.

What should management do in this case? Detailed instructions not contained in the TC. But refusal to sign the order does not serve as a basis for suspending the liquidation of the enterprise.

Dismissal of the head of a liquidated company

The procedure for dismissing a manager depends on whether he was included in the liquidation commission. If he does not become part of it, then the functions of the company’s management are taken over by a liquidation commission headed by a third party. This does not have to be a former director. Then his powers cease from the moment the liquidation commission begins its work.

When a director is appointed to the position of liquidator, he is the last to resign, after documentation termination of the enterprise's activities. Together with the manager, other members of the liquidation commission are dismissed: personnel officers, lawyers, accountants (i.e., all those specialists who are directly involved in the closure procedure).

The dismissal of a director must be recorded separately. When paying compensation to him, it is allowed to include additional bonuses. Otherwise, the procedure for dismissing a manager is no different from the standard one.

Dismissal of pregnant women upon closure of a company

By general rules Pregnant women and women on maternity leave cannot be dismissed at the initiative of the enterprise, solely at their own request. This rule has only one exception: liquidation of the enterprise. Before closing the company, the liquidation commission is obliged to terminate absolutely all employment contracts with employees, including pregnant women.

If an enterprise closes its branch located far from the head office, then the dismissal of women is carried out at legally taking into account Article 81 of the Labor Code. But if one branch closes, and a similar company opens in the same area, then the woman is simply transferred to a new division for the same position.

Pregnant women and women on maternity leave are given notice of dismissal on a general basis: 2 months in advance.

If a maternity leaver is fired, then the key aspect that worries the woman is how maternity benefits and benefits for the child will be calculated. If the woman did not go on maternity leave before liquidation, then maternity benefits will be paid from Social Security funds. Such pregnant women find themselves in a particularly disadvantageous position: their benefit amount will be only 515 rubles. per month.

The amount of child care benefits is calculated according to the minimum wage for that year. It does not exceed 3000 rubles. – for 1st child and 6000 rub. - for two.

But if the vacation began before the liquidation, then maternity benefits are accrued taking into account the average earnings for 2 years. Care allowance will also be paid at 40% of average earnings. Initially, it will be transferred by the employer; after the liquidation procedure is completed, the woman will need to contact Social Security.

Reduction of pensioners and seasonal workers

Such company employees are notified of dismissal on standard grounds. Individuals do not receive severance pay equivalent to that of the main staff. Seasonal workers receive it in a limited amount, equal to their two-week average earnings.

There are some specifics in the timing of notification of employees about their upcoming dismissal. The Labor Code provides for the following time frames:

• for pensioners - at least two months before dismissal (there is an indication of this in Article 180);
• for persons who have entered into fixed-term employment contracts for less than 60 days – up to 3 days (under Article 292);
• for employees involved in seasonal work - at least 7 days before the upcoming dismissal (Article 296).

Consequences of dismissal and further employment for an employee upon liquidation of an enterprise

Losing a job is always a rather difficult period in a person’s life. But the situation in which they find themselves former employees of a liquidating company is not so catastrophic. The Labor Code strictly protects their rights.

Thus, they are provided with severance pay in the amount of average monthly earnings for two months. For comparison, persons who resigned of their own free will are deprived of this privilege. They can only count on unemployment benefits, the amount of which in the Russian Federation is very small.

The future employment prospects for former employees are quite good. After all, their dismissal is not related to violation labor discipline, and with the closure of the enterprise. Much will depend on their qualifications and personal achievements at their previous place of work. Employees will have two months to find a new job, because they must be notified in advance.

Assistance in finding employment will be provided to them by the employment center. If desired, they can also receive government subsidies to start a business.

Usually, if a company is liquidated in name only, employees who have proven themselves to be the best are hired in a new place.

Of course, dismissal during liquidation has its disadvantages. Thus, this procedure affects even the most socially vulnerable categories of citizens, for whom it will be very difficult to find a new job. These are, in particular, pregnant women and pensioners.

There is also a big risk that finding a new job that matches the level of qualifications of the specialists will not be so easy.

If during the liquidation of an enterprise, an employee’s rights are violated, he can complain to the prosecutor’s office or the labor safety inspectorate (or immediately write a statement to the court). For claims, there is an appeal period of 1 month.

When an enterprise ceases its activities, all previously assumed obligations are subject to satisfaction to one degree or another. The same thing happens with contractual obligations. But are there different agreements? How this or that contract is terminated, depending on its subject, we will understand further.

Concept

1. Liquidation is the actual termination of the activities of a legal entity or individual entrepreneur.
   

   There are voluntary and forced liquidations.

2. A contract is an agreement two or more persons on the establishment, modification or termination of rights and obligations.
   

   The parties to the agreement can be both legal entities and citizens.

What is regulated

Liquidation of an enterprise on a voluntary basis is carried out on the basis

Depending on the grounds for liquidation, as well as on the organizational and legal form of the enterprise, when nuances arise, various “narrow” laws are applied.

• Other laws and regulations.

The definition of a contract is given in . Depending on the subject of the contract, as well as on the duration of its validity, it legal status may be regulated by various chapters of the Civil Code of the Russian Federation (for example, a lease agreement) and the Labor Code of the Russian Federation (employment contract).

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What kind of contracts are there?

One of the criteria for classifying civil contracts is their validity period.

Long-term

Such contracts include those documents for which the deadline for fulfilling obligations exceeds 1 year.

The term is one of the mandatory terms of the contract. Without its designation, the contract will not be valid.

As a rule, the contract specifies a date for termination of obligations. For example, December 31, 2019. That is, January 01, 2019, both the parties are released from the obligations specified in the document.

One-time

One-time contracts are concluded to perform a certain amount of work or provide services. Their validity period depends on the period of fulfillment of obligations.

For example, agreement to connect the company to the Internet.

As soon as second side, that is, the Internet provider, will connect the entire office, and second the party signs the certificate of services performed, contractual obligations are considered terminated.

Termination Procedure

The decision to liquidate the enterprise is the basis for the termination of all contractual obligations. Refuse to terminate obligations completely second the party has no right. But they have the right to demand payment of monetary compensation from the liquidated company. This applies to both employment contracts and civil ones.

Long-term contracts, as a rule, are renewed automatically. It is almost impossible to obtain compensation for such obligations, even in court.

The court is guided by the fact that during long-term cooperation it is possible:

1. Discover systematic violations clauses of the contract;
   

   It is precisely such violations that the defendant, that is, the liquidated enterprise, refers to and wins the case.

2. Many contracts have a unilateral termination clause;
3. Liquidation itself is not grounds for termination of obligations.

It is much easier to receive compensation for one-time transactions.

Features of termination of an employment contract in connection with the liquidation of an enterprise

All employees of the liquidated enterprise are subject to dismissal. But the correct order must be observed. Otherwise, employees may sue to have the dismissal invalidated and to receive additional compensation.

If an employment contract is terminated due to the liquidation of the organization, all employees must be notified 2 months before the expected closing date.

Notification occurs in writing. Each employee receives the document personally. If this is not possible, then the notification can be sent by registered mail with notification.

There is no standardized form of notification. The employer writes it in free form.

But it should contain the following information:

• full name of the organization indicating its legal form;
• full name and position of the employee;
• document title: “Notice in connection with liquidation”;
• details of the employment contract;
• details of the decision on liquidation;
• date of termination of employment relationship;
• signature of an authorized person.

The notification must be made in 2 copies. One remains with the employee, and another- from the employer. On the employer’s copy, the employee must sign and write “agree” or “disagree.”
If the employee refuses to sign the notice, then an act of refusal to sign must be drawn up. It is signed by an authorized person and 2-skills witnesses.

Through 2 months after notification, the employment contract terminates and the employee is considered dismissed.

In this case, the employer must pay him:

• wages for actual time worked;
• compensation for unused vacation;
• severance pay.

Severance pay is paid for 2 subsequent months after dismissal. This time is necessary for the employee to find employment. The benefit is equal to the employee’s average earnings for the last year.

If the employee decides not to wait until the expiration of the dismissal period, he can resign of his own free will.

At the same time, the employer must still pay him a benefit proportional to the time remaining until the end of the dismissal period.

A sample notice of upcoming dismissal can be found download here.

Rentals

According to, all contractual obligations cease from the moment of liquidation of the company. However, liquidation itself is not grounds for termination of obligations.

The lease agreement can be terminated unilaterally, which is provided for by the terms of the agreement itself.

1. If the lessor is liquidated, then the leased item will most likely be put up for auction and its owner will change.
The tenant can conclude new agreement rent with a new owner. You can agree with the landlord that the contractual relationship is terminated from such a date by agreement of the parties.

It is better to draw up the agreement in writing, discussing in it all the conditions for terminating the lease agreement. The agreement is drawn up in 2 copies - according to alone each party, and signs both parties.

2. The same can be done if the tenant is liquidated. He must notify the lessor that he is ceasing to rent the property from him.

Usually the contract specifies the period when the owner must be notified.

For example, for 2 months. It is better to notify in writing. If the notice period is not specified in the contract, then this must be done before 1 month.

Others

Other civil contracts are terminated in exactly the same manner as a lease agreement. If there is such a possibility, then better for both sides negotiate and sign an agreement. If an agreement cannot be reached, then the “fate” of the obligations must be decided in court.

The injured party has the right to demand compensation for the losses incurred. For example, under a supply or purchase agreement.

Liquidation or bankruptcy does not occur after one day. This requires certain prerequisites. Therefore, in order to avoid litigation, management is advised to worry in advance about the termination of the contract in connection with the liquidation of the legal entity and the repayment of debts.

Questions

There are some questions that I would like to examine further.

Consequences

Liquidation is the cessation of the activities of an enterprise.

When all mandatory procedures ends, an entry will be made in the Unified State Register of Legal Entities that this person has been liquidated.

After this, it is almost impossible to present any demands to the debtor. There is a certain period for this, which is indicated in the publication on liquidation. As a rule, this is 2 months.

If the creditor did not have time to present his claims during this time, he can do so in court, proving their relevance. This also applies to compensation payments for termination of contractual obligations.

Are there any special features for LLCs and individual entrepreneurs?

The decision to liquidate an individual entrepreneur is made by him personally, and the decision to liquidate an LLC is made at a meeting of all its participants. There are no other specifics regarding the termination of contractual obligations. Only individual entrepreneurs, as a rule, are liquidated faster.

1. An individual entrepreneur is liable for the debts of the company with all his property, as an individual.
2. And LLC participants - only within the limits of their share in the authorized capital.

Therefore, with an individual entrepreneur it is easier to “share” compensation for losses incurred by the counterparty upon termination of the contract. If an individual entrepreneur is liquidated without employees, then the process itself will go very quickly - literally in six months. You just need to notify creditors and pay off debts. There is no need to fire anyone.

Is it necessary to file a notice?

A notice that one of the parties to the contract is being liquidated must be drawn up. This applies to both employment contracts and civil ones.
As a rule, you need to warn in advance 2 months, since liquidation is not a sudden decision.

This time is given to the other party to find another counterparty or to submit claims for compensation.

The notification must be made in writing, preferably in 2 copies. One, which remains with the liquidated enterprise, must bear the signature of the employee who received it. This indicates that the counterparty has been properly notified.

If it is not possible to deliver the notice in person, then it can be sent by registered mail with notification. The notice itself, with the signature of the employee, will be evidence of the notice.

Due to the liquidation of the tenant

When a tenant is liquidated, he must notify the landlord that the relationship will be terminated from a certain date. Such a condition for termination of the contract is provided for both by the Civil Code of the Russian Federation and by the terms of the contract.

With proper notification, the landlord has no right to demand compensation from the tenant.

Conclusion

Liquidation is a lengthy procedure. And, if one of the parties wants to receive compensation for unfulfilled obligations, then it has enough time. You can receive compensation both in court and by agreement of the parties.

The decision by the owners to close the LLC is grounds for termination of all company contracts. Counterparties do not have the right to refuse to terminate business relations. However, they may demand compensation for failure to fulfill previously accepted obligations. Often the amount of such compensation turns out to be unaffordable, as a result of which heated disputes flare up and liquidation is postponed indefinitely.

How to terminate a business relationship without damage?

Employees of the Radomas Center will provide qualified legal assistance in resolving issues with business partners. Experienced lawyers will negotiate with representatives of counterparties and agree on the amount and procedure for payments. If signs of a chicane (abuse of law) are identified, claims will be filed and legal proceedings initiated.

Termination of long-term contracts

In legal practice, it is customary to include all agreements with an automatic extension mechanism in this category. Such contracts are terminated without payment of compensation or with minimal compensation. Arbitrage practice contains a number of examples where the plaintiff’s demands for payment were denied.

This position of the servants of Themis is explained by several facts:

• with constant cooperation, it is easier to find systematic violations of the terms of the contract (defendants often refer to such circumstances and win cases);
• most contracts include provisions on the right to unilaterally refuse to perform the contract;
• The liquidation of an LLC is not a violation of contractual obligations under long-term contracts, so the issue of applying penalties is extremely rarely considered here.

Termination of relationships for one-time transactions

When terminating one-time agreements, avoid financial losses it will be much more difficult. In this situation, the center’s lawyers will ensure negotiations and achieve a reduction in the amount of the penalty.

In the course of work in the most conflicting areas, the following techniques and techniques are used:

• mediation;
• applying to an arbitration court;
• initiation of arbitration proceedings;
• replacement of persons in an obligation;
• and much more.

Over many years of practice, the center’s specialists have created many unique algorithms for resolving economic disputes. Their repeated use allows us to guarantee clients success even in difficult situations.

What should you know?

All payments, compensation, penalties and fines are made at the expense of the company, and, therefore, are included in the cost of closing the LLC. If the company does not have the funds to pay off the claims, the founders have the right to raise the issue of insolvency of the legal entity. Already at the stage of drawing up the interim balance sheet, all calculations are suspended, and the corresponding application is sent to the arbitration court.

In such a situation, the claims of counterparties arising from unilateral termination of contracts are included in the general register of creditors' claims. Their satisfaction is carried out taking into account the rules of priority, after carrying out procedures of monitoring, reorganization, external or bankruptcy management.

Practice shows that more than half of all company contracts are terminated in pre-trial procedure. Entrepreneurs do not want to enter into lengthy litigation, so they agree to mutually beneficial conditions.

Involving a professional lawyer in the process is a guarantee of successful completion of commercial relationships with minimal losses for the company.