Reduction at the enterprise by agreement of the parties. What is the best choice for an employee? At your own request and by agreement of the parties

A number of employers offer employees select between dismissal to reduce and dismissal by agreement of the parties... But the employee always has doubts about how open and honest the employer is in this proposal. Is there a catch in it? Let's take a closer look at both forms of termination.

Reduction of the number and staff of employees

Reduction of the number and staff of employees is usually applied in cases where the business or its individual areas are not in the best economic situation, then there is a need to optimize the quantitative composition of employees. Labor legislation prescribes in such a situation strict observance of the rights of certain categories of employees, as well as strict adherence to the timing and sequence of the procedure for warning of reductions and the dismissal itself. Let us dwell in more detail on the dismissal procedure for redundancy. First of all, before the start of the downsizing procedure, employees who are not subject to layoffs (single mothers, pregnant women and others) must be identified, must be taken into account preemptive right be left at work.

That is, if an employee has a higher qualification, has two or more dependents, and in a number of other cases, then he has more rights to continue working than other employees. The company must notify the employee about the layoff no later than two months before the expected date of dismissal, as well as inform the employee in writing about the available vacancies. If the dismissal of an employee cannot be avoided (there are no vacant positions in the company, the employee does not belong to the “privileged” group), then upon dismissal the company is obliged to pay him severance pay... If the employee does not find a job, then the right to receive benefits in the amount of the average monthly salary remains with him for the second and third months from the date of dismissal (provided that he is registered at the state employment center). Thus, potentially, the employee has the opportunity to maintain approximately the same level of income for five months (from the date of the warning about the reduction and until the end of the third month from the date of dismissal). This is especially important for those who are not in great demand in the labor market for various reasons.

Dismissal by agreement of the parties

Dismissal by agreement of the parties is a fairly flexible form of separation of the company from employees, which can be used in different situations... It does not imply strict requirements for document flow and terms of notice of dismissal. This form of dismissal is chosen when it is difficult to part with an employee for other reasons. It is legitimately used by companies as an alternative to layoffs for layoffs, since the compensation package may include payments comparable to those for layoffs, and sometimes even large ones. Often, those who are confident that they will quickly find a job, they want to receive the amount of compensation immediately and be free to find a job, tend to this form of dismissal. new job.

But often this form of dismissal is used by the employer as a way to put pressure on the employee: they want to leave the employee, they do not want to provide other work, and payments upon dismissal are offered scanty or are not offered at all. In this situation, it should be remembered that dismissal by agreement of the parties is the result of mutual agreements, but if the conditions are not satisfactory, you should not agree to dismissal.

Let's analyze specific example appeals to our lawyers of a client who is faced with the need to choose a form of dismissal:

I hold the position of a senior researcher at a research institute. The project, on which we have been working for five years, is being closed, our department is being disbanded. At the meeting it was announced that they would not be able to employ us at the institute, although there are rumors about the opening of new projects. We were informed that most of the employees of our department will be fired either by agreement of the parties with the payment of three salaries, or by reduction (they suggest choosing). Is it legal? Are my rights being violated?

At first glance, there is nothing illegal in the offer of our client's employer: there is no pressure on him, he is offered to choose between similar compensation packages. But since our client is the only senior researcher in the department (all other junior researchers), he has the priority right to be left at work, in addition, if he chooses the agreement of the parties, he will lose the right to receive vacant post in the new project, if one appears. If you are faced with a similar situation, you can contact our lawyers. We will help you to make right choice!

Today, you will not be surprised by the reduction of the staff of the company or the number of its personnel. The procedure for dismissal to reduce the number of steps and is very extended in time - 2 months before dismissal, you should notify the employee in writing about this, offer available vacancies, and if there are none or the employee cannot take them for any reason, competently dismiss him, observing all interests. At the same time, the employee may not wait for the day of reduction, but use the right to leave earlier, having coordinated his dismissal with the employer. Let's find out what benefits he can get in this situation.

Reduction or dismissal by agreement of the parties

As a rule, employees who have already been invited by another employer go to dismissal by agreement of the parties. The rest of the departure to "nowhere" prefer to wait for the date of reduction, while they are guaranteed:

salary for hours worked;
vacation compensation;
severance pay in the amount of the average monthly salary;
payments stipulated by industry agreements.

In addition, with timely registration with the employment service, the company will pay job seeker the employee has another 2 months of searching for it, and in exceptional cases, the third. For some groups of personnel, job searches are paid for 6 months.

And what benefits can an employee receive when laid off by agreement of the parties? Art. 78 of the Labor Code of the Russian Federation, which regulates the procedure for such dismissal, only emphasizes that this can be done at any time. The initiator of such a dismissal can be both the administration and the employee. This is usually beneficial for the company, since it is possible to significantly shorten the time of the reduction process, often saving on severance pay, and there is also a benefit to the employee - when receiving offers from another employer or from the administration for the payment of a significant amount of "compensation".

The termination procedure by agreement of the parties begins with the notification of the initiator to the other party. For example, an employee can state his proposals in a statement, and the employer can read it and agree or not. A written agreement is drawn up and signed by both parties. Change the terms of this agreement in unilaterally it is illegal, cancellation or something change in it can only be done in writing and with the consent of both participants.

Reduction by agreement of the parties: what payments are due

An employee who leaves by agreement with the administration is entitled to payments:

Salary for hours worked;
Compensation for previously unused vacation;
Severance pay, which is actually compensation for the loss of a job.

The first two are obligatory of these payments. Severance pay is the employer's right. And it is important that this condition is spelled out in the agreement, since the law does not oblige the company to pay compensation in such situations. Its size is not limited by law, it can be calculated in the amount of average earnings calculated for the time remaining until the end of the warning period, but it can also be set in a fixed amount. The absence of a condition for the payment of severance pay in the agreement will lead to the payment of only the minimum set - salary and compensation for vacation.

So, choosing a reduction or dismissal by agreement of the parties, each participant calculates his own benefits. The agreement is convenient for the administration of the opportunity to terminate the employment contract even in cases where dismissal is legally prohibited, the employee gives the opportunity to quit with the prospect of receiving "compensation" before the start of mass layoffs. But in practice, the amount of payments even in case of dismissal by agreement of the parties in its maximum set is usually lower than the amounts due upon dismissal due to redundancy.

Rules for the payment of severance pay upon dismissal by agreement of the parties

Many employers try to get by with one statement from the employee, on which they put the resolution. But it is better when, upon dismissal by agreement of the parties, an agreement on termination is drawn up employment contract by agreement of the parties, where a number of important issues are recorded: what date will be the last day of work, that is, the day of dismissal; that the employee will be dismissed precisely by, that is, by agreement of the parties; what amounts will be paid to him; that the parties have no mutual claims to each other, etc. Typically, such an agreement is drawn up in duplicate.

When drawing up an agreement, you should pay attention to the employee's employment contract. If it does not indicate that in case of dismissal of an employee by agreement of the parties, he will be paid a certain amount of severance pay, then this condition must be included in the employment contract. This is done simply: an additional agreement is drawn up to the employment contract, which spells out the condition for the payment of severance pay in such and such an amount.

In the Decision of the Supreme Court of the Russian Federation of 08/10/2015 No. 36-KG15-5, an interesting situation from the point of view of practice is given: the employee and the employer agreed that upon dismissal by agreement of the parties, the employee will be paid severance pay, they drew up an agreement on termination of the employment contract under the agreement of the parties, where they prescribed that severance pay will be paid. And then the following situation develops: the employer dismisses the employee by agreement of the parties, but does not make an additional agreement to the employment contract and does not pay severance pay. The worker goes to court, and Supreme Court, examining this case, confirms the legality of the dismissal of the employee by agreement of the parties without payment of severance pay. He considered that since he says that other cases of payment of severance pay should be provided for by an employment or collective agreement, which was not in this case, but there was only an agreement to terminate the employment contract by agreement of the parties, then everything is legitimate.

Rules for the payment of compensation for unused vacation

Upon dismissal, the employee is paid compensation for all unused vacations (). In matters of calculating, counting the vacation days that the employee earned, determining the period for which compensation must be paid for unused vacation, the application of the rules for determining this period, must be guided by (approved by the NKT of the USSR on 04/30/1930 No. 169).

If an employee leaves during the first working year, the rules of clause 28 are applied: “Upon dismissal of an employee who has not used his right to leave, he is paid compensation for the unused vacation. At the same time, employees who are dismissed for whatever reason, who have worked for this employer for at least 11 months, subject to offset in the period of work that gives the right to leave, receive full compensation. "

This norm indicates that if in the first working year an employee has worked for 11 months and he quits, then he is entitled to compensation for leave as for 28 calendar days.

If an employee leaves during his first year of work to reduce staff or headcount, the employer should also target. In them, in particular, the following is written:

“Full compensation is received by employees who have worked from 5 1/2 to 11 months, if they leave due to the liquidation of an enterprise or institution, or separate parts him, reduction of staff or work, as well as reorganization or temporary suspension of work; receipts for valid military service; business trips in the established manner to universities, technical schools, workers 'schools, preparatory departments at universities and courses for training in universities and workers' faculties; transfer to other work at the suggestion of labor bodies or commissions with them, as well as party, Komsomol and professional organizations; found out unsuitability for work ”.

Of all these cases, situations with staff reductions are especially common. And usually workers who have been hired recently fall under the layoff. This raises questions about the definition of days for which compensation for unused vacation is due. The answers to them are given by the Rules on regular and additional vacations - that full compensation should be paid. This is also reminded in.

Clause 35 of the Regulations on regular and additional vacations says: “When calculating the terms of work, giving the right to proportional additional leave or for vacation compensation upon dismissal, surpluses of less than half a month are excluded from the calculation, and surpluses of at least half a month are rounded up to a full month. " At the same time, applying clause 35, it is important to remember that since the employee earns the right to vacation for a working year, it begins to be calculated from the date of the conclusion of the employment contract.

So, for example, if an employee is hired on September 17, 2015 and leaves from November 30, 2015, then when calculating the length of service that gives the right to leave, the following calculation is obtained: first month - from 09/17/15 to 10/16/15; second month - from 10/17/15 to 11/16/15; the third month - from 11/17/15 to 11/30/15. Since the third month has not been fully worked, compensation for unused vacation is paid only for two months.

Dismissal bonus payment rules

A bonus is an incentive payment, which is a type of incentive payment. And the salary, according to, is the remuneration for work depending on a number of indicators (employee qualifications, complexity, quantity, quality and conditions of the work performed), as well as compensation payments (additional payments and allowances of a compensatory nature, including for work in conditions that deviate from normal, work in special climatic conditions and in the territories exposed to radioactive contamination, and other payments of a compensatory nature) and incentive payments (additional payments and incentive payments, bonuses and other incentive payments).

Thus, the premium is part of wages, and according to it, too, must be paid upon dismissal. But there is one point: the bonus, as a rule, is tied to the result, therefore it is paid once a month, once a quarter or once every six months. It follows from this that after the end of the period, it is still necessary to collect information for calculating the bonus, issue an order on bonuses, after which the accounting department will calculate the bonus and pay it. In this case, you need to remember about the local regulations on wages, which are in every organization.

It says that the calculation procedure (specific size, indicator) should follow from the local normative act on remuneration. And the tax authority, having opened the regulations, should see that the size of the premium has been determined.

Some employers prescribe rules on the payment of bonuses so that the employee cannot guess how much money he can get. Usually it sounds like this: when a favorable financial result is achieved, at the discretion of the manager, the employee can be paid a bonus, the amount of which is determined by the order. At the same time, the tax authorities talk about a specific amount. And if in local normative act the employer does not prescribe in the preamble that the bonus is paid, for example, based on the results of work for the year and that the employee must be in an employment relationship on the date of the decision to pay this bonus, then the employer will be obliged to calculate and pay this bonus individually for the employee upon dismissal, not waiting for the end of the financial year and the decision of the management to pay the bonus at the end of the year.

Reduction or dismissal by agreement of the parties - which method is more profitable for the employee? Both options have their advantages and disadvantages, and the termination procedure labor relations contains many nuances.

Features of dismissal due to staff reduction

When cutting back staffing table one or several positions can be removed, the number of employees holding the same positions can be reduced. In both cases, the dismissal procedure is identical:

Positions are selected to be reduced or abolished.
Among the people who occupy them, those who cannot be fired according to the law, and those who have the privilege of retaining their position are excluded.
2 months before the start of the change in the staffing table, a written warning is issued to employees. They must sign it, otherwise the further procedure will lose its legitimacy. The trade union (if there is one at the enterprise) and the employment service must be notified of the upcoming procedures.
In the warning, employees should be offered alternative vacancies in the enterprise, which they can fill according to their qualifications. Also, the employee can agree to early dismissal, having received additional compensation for this, or for leaving by agreement of the parties.

After the expiration of a two-month period, if the employee has not transferred to another position, an order of dismissal is issued.

The laid-off employee on the last working day receives:

salary for the worked period;
compensation for vacation days that have not been used;
severance pay in the amount established by law.

In the future, the company can continue to pay compensation for another 2-3 months before the date of employment.

Features of dismissal and by agreement of the parties

The termination process is easier for the company. You just need to sign the agreement and determine the date of the end of the employment relationship. There is no need to warn the union and the employment center.

In order for an employee to make a decision to quit on the proposed terms, as a rule, the company offers him certain compensation. They are not regulated by law, but usually their size is comparable to payments in case of reduction.

Nuance! Despite the compensation, dismissal by agreement of the parties is more convenient for the employer, since it does not require prior warning, which means that there is no need at this time to pay the salary to the employee who will then leave.

What to choose: reduction or dismissal by agreement of the parties?

In order to make the right choice - to quit by reduction or by agreement of the parties, you need to take into account the advantages and disadvantages of each method.

Downsizing

This option has the following positive aspects:

Early warning of future layoffs gives the employee the opportunity to find a new job in advance.
The employer is obliged to offer an alternative vacancy, if any at the enterprise.
The dismissed person receives the official status of the unemployed, therefore he receives more payments and compensations.

If the procedure is not followed, the employee may apply to the court with a claim for illegal dismissal... As a rule, courts resolve such disputes against the employer.

However, there are also disadvantages:

The procedure for cutting staff is more complicated and time-consuming. It requires compliance with all formalities and preparation. a large number documents.
When reducing staff, the initiative comes from the company, which means that an employee cannot leave for this reason if an alternative position was found for him at the same job.

In this case, you will have to write an application for on their own.

Agreement between the parties

This method has the advantage of a simpler and faster procedure. But both sides need to agree on the terms. They may be preferable for the employer than staff cuts.

The employee, in turn, also has the right to protect his interests to a certain extent. If the text of the agreement does not suit him, he has the right to refuse to sign it.

The disadvantages of dismissal by agreement of the parties for an employee include:

Smaller payments than reductions in staff.
Impossibility to challenge the dismissal.

Anyone can be dismissed, regardless of whether he belongs to the categories for which there is a right to remain in office.

Difference for workers between layoffs or voluntarily leaving

Signing an agreement between the parties and submitting an application of their own free will are not the same. In the second case, the initiative comes only from the employee, and in the first - from both parties.

Therefore, after signing the agreement, you cannot change your mind and stay to work. And the application can be withdrawn at will within two weeks.

At the same time, upon dismissal at the initiative of an employee, no additional compensation or compensation is due to him. The dismissed person receives only the following payments:

salary for days worked;
payments for unused vacation.

Therefore, if a person has already been offered a new vacancy, it is more convenient for him to quit at his own request. If receiving is important material assistance at the time of employment, it is more profitable to reduce.

Problem

Hello!

I ask you to advise me.

I work at an enterprise that is part of the state corporation "Rosatom". A few days ago I found out what is planned massive reduction employees of our company (approximately 350-400 people). The parent company is ready to allocate funds so that most of the staff would leave by agreement of the parties and are ready to pay six average salaries... Our enterprise is located in ZATO and is equated to the cities of the north, i.e. compensations for reduction and registration at the employment center are paid within six months and if there has been a massive reduction, then in my opinion they continue to pay with a reduction coefficient (I'm not sure of this and would like to clarify this point with you).

I would like to consult what is better to choose to resign by agreement of the parties or by reduction of staff.

If I choose the agreement of the parties, then how best to write a statement to take into account all the nuances. Should the agreement say “in connection with the reduction” and what are the benefits of this? If I leave by agreement of the parties, then how long can I go to the employment center and what payments will be charged (minimum 5800 or depending on salary or average earnings). As I understand it, vacation compensation may not be paid if it is not spelled out in the agreement and tax from compensation payments should not be charged. I also want to leave a certain date, can I indicate this date in the application?

I am waiting for detailed answers to my questions.

Sincerely!

Solution

Hello Oksana!

Come on, so, for now, I'm answering the question posed in the title of the topic. It is better to quit to reduce the number or staff, since there are guaranteed various payments for the period until you can find a job at a new job, i.e. while you are looking for a job.

http://taktaktak.org/blog/posts/2014/05/11537/ Payments in case of reduction in the number or staff of employees of the organization

But, here employers usually refer to those who have been laid off, that specialists who are no longer needed or disliked by the employer fall under the layoff. good professional they will always find how to save in the company. From this point of view, it seems like it is not profitable to get under the reduction of the number or staff.

Thanks! Yes you are right. We have a rather rare specialization (composite materials) and only three people work on this topic, but they are above me in category. Although it is clear that the enterprise is falling apart and there is no point in staying.

Now I am reading your topic, and you know if how you write that that there are plans for a massive layoff of workers in ourenterprises (about 350-400 people). The parent company is ready to allocate funds so that most of the personnel would leave by agreement of the parties and are ready to pay six average salaries.

1. since this is a massive reduction, and here it is when finding a job with a new employer and it is necessary to point out that the company is not doing very well, and this was a massive reduction.

2. This employer offers you all the benefits that are guaranteed to an employee in the Far North and areas equated to them and this situation. And they are ready to make you these payments in 6 months, if you quit by agreement of the parties, and this is exactly 6 months, by the way, which are guaranteed if you quit due to the reduction of the number and staff, on the condition that you would apply to the Central Center, and here you will be paid exactly everything if you quit by agreement of the parties.

And therefore, look at the situation, I would agree to quit just by agreement of the parties, tk. if the organization is doing badly, then it is better to get into the stream when you have the money to make payments upon dismissal and with good payments. And then, if you drag out the situation, and the company will go badly, then you will have to run around the courts and demand your payments upon dismissal, but it turns out that the organization will not have any money to receive these payments, there are examples and even giants industrial workers cannot then pay their workers even by court order.

And yet, if you want to apply to the Central Office and / or register with the Central Office, then you can do this with a record of dismissal by agreement of the parties, the main thing is that these 6 average wages will be paid to you under this article.

At one point, look, the main thing is that the Agreement on termination of an employment contract by agreement of the parties stipulates that 6 average wages are paid to you upon dismissal and a second copy of this agreement signed is obligatory so that you will be handed over to you and no promises, if will not be spelled out in the Agreement to disagree, tk. deceived.

To your question, Should the phrase soundin the agreement "in connection with the reduction"

If this is a dismissal by agreement of the parties, then there can be no such phrase in the Agreement, but what should be there, I have already indicated exactly that you will be paid compensation or severance pay or bonus, even if they want to be called so in the amount of 6 average monthly earnings.

About the employment center, I told you, you can get up and with such a note about dismissal, you will need to bring a certificate from the employer to the central center, the amount of the benefit will depend on the amount that will be indicated in the certificate, and provided that within 12 months prior to the beginning of unemployment, you had at least 26 kalnedels on a full-time basis, and I think that you will receive exactly the maximum payments in this case, and the regional coefficient is also added to this amount.

In accordance with clause 1 of article 30 of the Law of the Russian Federation "On employment of the population in the Russian Federation" dated April 19, 1991, No. 1032-1, unemployment benefits are established as a percentage of the average earnings calculated for the last three months at the last place of work, if during the 12 months preceding the onset of unemployment, the citizen had a paid job of at least 26 calendar weeks full-time (full-time) or part-time (part-time) based on 26 calendar weeks full-time (full-time) and dismissed from the organization for any reason other than those specified in clause 2 of this article.

To register a citizen for search purposes suitable job and recognizing him as unemployed in the future, the citizen must contact the employment department at the place of residence, fill out an application form for providing the citizen with a state service of assistance in finding a suitable job and, in accordance with paragraph 2 of Article 3 of the Employment Law, submit a certificate of average earnings for the last three months at the last place of work, issued in accordance with the established procedure, as well as present:

Passport or document replacing it;

Labor book or document replacing it;

Documents certifying professional qualifications;

Individual rehabilitation program for a disabled person, if there is a disability.

Thank you very much, everything is very clear. 26 weeks, even if we count from the beginning of the new year, they will come at the end of June, and in 12 months they have been worked out long ago. The reduction of the above number is planned to be completed by September 10, dismissal by agreement of the parties by August 15.

And yet, if the agreement on vacation compensation is not spelled out, then you are wrong here and you don’t understand, but if it doesn’t say about 6 average monthly earnings, they may not be paid, but compensation for unused vacation is a guaranteed payment upon dismissal Article 127 of the Labor Code of the Russian Federation and about this payment in the agreement or in the order of dismissal, you do not need to write it, the employer is simply obliged to pay it by law, in the same way he will be obliged to pay for the days worked in the period by the day of dismissal.

I also want to leave a certain date, can I indicate this date in the application? - you can indicate this date in the application, but this is already by agreement with the employer and the main thing in the application is to indicate that you are asking to be dismissed on such a date and you agree to dismissal by agreement of the parties, but on condition that this Agreement is signed with you on termination of the TD and will be given a second copy in hand and, provided that this Agreement will indicate payments in the amount of 6 average monthly salaries, to those payments that are guaranteed by law. It's better to write a statement somewhere like this.

Now most of the enterprise is being transferred to 2/3 (workers are already leaving 2/3 from the 9th), the question is not yet clear with regard to specialists.

Explain, please:

If we are sent to 2/3, then we all have to be at work for 8.2 hours and receive 2/3 of our earnings? (The workers on this moment there is no work, and they are sent home, and we always have a job). And how will such a payment affect the average monthly earnings. They also offer to go on vacation for this period, for whom they have not been used. Now I think to postpone my vacation for the specified period and that this will bring the least damage to my average earnings.

If we are talking about simple, then everything work time or not all workers will be at the workplace, this is determined by the employer and this should be indicated in the order.

And yes, this will affect payments, because the average earnings are calculated from 12 months to the month of the event, I suggest you study the article on this topic

http://taktaktak.org/document/12936 In what cases the payment of average earnings to an employee may be less than his salary

If he is offered an annual vacation, then it is better in this case to take an annual vacation, and not just go away.

Solution

Oksana, you can contact the employment service even the next day after your dismissal, if you have everything Required documents(passport, employment history, document confirming qualifications, certificate of average salary and an individual rehabilitation program if there is a disability). The minimum unemployment benefit is 850 rubles, the maximum is 4900 rubles excluding the regional coefficient. What will you have, you can tell only upon presentation of a certificate of the average salary. It is pointless to guess here on the site. In general, the sooner you contact SZ, the better. If you quit due to the reduction or liquidation of the enterprise, you must contact the SZ within 2 weeks.