Early dismissal due to staff reduction at the initiative of the employee: what do you need to know about filing an application and drawing up an order before the end of the notice period?

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Published: 05/17/2016

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Reducing the number of workers largely depends on the employer's decision. Labor legislation gives him the right to take initiative in this case. One of the manifestations of this initiative is that an employee who is being laid off will not be able to leave work early without the consent of the immediate manager of the organization or enterprise.

And the employee’s reasons may be quite valid. For example, he has found a new job and wants to immediately begin fulfilling his duties. To obtain management’s consent to early termination of an employment contract, the employee must write and submit an application.

However, the presence of such a document does not guarantee that the employee will get what he wants . The legislation gives the right to early care in accordance with Federal Law No. 197, however, it does not impose such an obligation on employers. That is, the decision in this case will depend on the goodwill of management.

How to write a statement?
Early dismissal procedure
What payments are due?
Controversial issues

Regulatory basis for early termination of a contract during layoffs

Termination of employment relations with the employer due to a decrease in the number of people employed in the company is carried out on the basis of the provisions of clause 2 of Art. 81 Labor Code of the Russian Federation. When deciding to reduce the company's staff, the personnel to be dismissed are warned 2 months before the date of termination of the contract. At the same time, for seasonal personnel this period is reduced to 7 days, and for a fixed-term contract - 3 days.

Attention

At the same time, Art. 180 of the Labor Code of the Russian Federation is allowed by decision of the employer, but with the consent of the employee, termination of employment relations before the expiration of the specified period.

For a long time, disagreements arose among experts due to the wording of this paragraph of the article.

Clarity was brought to this issue after the appearance of the Constitutional Court of the Russian Federation of September 29, 2015 No. 1881-O, which stated that early termination of a contract at the initiative of the worker is not prohibited and is quite possible in the absence of objections from the employer

Payments upon dismissal due to reduction before the expiration of the reduction period

It is clear that it is more economically profitable for the employer to fire workers during the layoff period at their own request. In this case, he should not make compensation payments. Some dishonest employers even use threats and methods of psychological pressure to force employees to quit on their own.

p style=”text-align: left;”>If an employee quits early, then the following payments are provided for him upon dismissal due to reduction before the expiration of the reduction period, which are paid by the employer:

wages for the time actually worked in the month of dismissal;
compensation for all vacations that the employee did not use;
severance pay equal to the average monthly salary (only if early dismissal is initiated by the employer);
additional compensation equal to the average earnings for the time remaining before reaching the appointed date of dismissal due to staff reduction (if this is specified in the collective agreement);
for the period of employment - average monthly earnings, but this period should not exceed two (in some cases, by decision of the employment center - three) months from the date of dismissal.

Prerequisites for terminating the contract before the end of the notice period

The initiator of early dismissal during layoffs can be either the person being laid off or the employer who previously provided him with work. The desire of an individual to terminate the contract before the end of the allotted period of notice of dismissal, as a rule, is explained by the fact that he has already found a new job and the potential employer is not ready to wait so long for him.

In this case, he notifies the company of his intention and, in the absence of objections from the current employer, he is fired due to staff reduction.

Information

If an agreement fails, he always has the opportunity to write a statement of his own free will, without receiving the amounts due to him according to the law.

For an employer, there are many more reasons for offering a redundant person to vacate his or her job early:

Hostile relationships and excessive conflict of the dismissed person;
There is a need to quickly release the occupied space being reduced for other production purposes;
The need for accelerated staff reduction in connection with the upcoming merger, reorganization, etc.

If the initiative comes from the employee, then he can express it both in written and oral form. The subsequent termination of the contract in connection with the reduction and the issuance of the corresponding order will, in fact, be an expression of consent by the action on the part of the employer.

In this case, no additional written agreements are required. If early dismissal is the employer’s idea, he needs to notify the worker in writing against signature, and only after that can he issue a dismissal order due to the reduction.

Grounds for early dismissal

There must be sufficient grounds for the premature severance of labor ties between the employer and the employee. What does it mean? The following conditions must be met:

Dismissal must take place in compliance with legal requirements.

This means that without following the rules of law, the head of the organization definitely has no chance of implementing his plans, and this procedure is quite cumbersome and complex. The organization must inform the employment center about the planned settlement (at least 2 months in advance). In addition, it is necessary to take into account the primary opportunity of individual employees to maintain their jobs (Article 179); it is also mandatory to provide employees with alternative work options and available vacancies.

The consent of the contract participants for dismissal in connection with the reduction at an earlier date was obtained.

How to obtain consent will depend on the one who expressed a desire to “break up” without waiting for the end of the allotted time.

Information
Let's look at the option when the initiative comes from the person being fired. In this case, the employee sets out his intention to resign early due to redundancy in a statement addressed to the manager and puts down a specific number of departure. The permitting resolution on this document is consent to carry out an advance reduction. The practice of court cases shows that an employee of an organization can withdraw his application, but the employer has the choice to satisfy the subordinate’s request or leave it without consideration.

Information

When the initiator of early layoff is the employer, he can obtain the employee’s consent by signing an agreement on early termination of the contract due to staff reduction. It should contain all the key points of such dismissal. In the future, the parties have the right to reconsider the terms of the agreement or cancel the agreement, but this must be a joint decision. An indispensable condition for dismissal is the employee’s signature on this agreement.

Key points related to early redundancy

Initially, both parties to the employment contract are notified of the upcoming headcount optimization. The severance of an employment relationship before the deadline for working out is preceded by several mandatory stages:

The company issued an order about the upcoming reduction, and employees were given notice that they would be fired in 2 months.
Those being dismissed sign the appropriate written notices and submit them back to the personnel department.
Attention
If any of the personnel refuses familiarization, a certificate of refusal to familiarize is drawn up, which also remains in the personnel service.

The sequence of actions for early dismissal should then be as follows:

Informing one party of an employment contract to the other party of its intention. The law does not establish a clear form for such notification. For this, a statement written by the employee or a written notice drawn up by the employer and handed to him against signature can be used.
Reaching an agreement on a future early separation.
Attention
In the event of an initiative on the part of the employer, it is advisable to formalize in writing the consent received from the hired personnel to terminate the contract before the end of the two-month period. It can additionally describe the conditions under which the reduction will be made, in particular all the payments due to the staff.
Drawing up a dismissal order due to layoff before the end of the notice period. Such a document can be generated either in any form or using the standard T-8 form, approved by Decree of the State Statistics Committee of the Russian Federation No. 1 of 01/05/2004. The person being reduced must be familiarized with the specified document against signature. At the same time, a certificate is drawn up - a calculation of the due accruals in connection with the dismissal. The necessary entries are made in the employee’s work book.
Payment of all due components of wages, including payment for time worked, as well as those established by legal acts in the event of a reduction in guarantees and compensation. All specified amounts must be issued to the employee strictly on his last working day.
Issuance of all documents required by the employee upon dismissal. A work book and a certificate of earnings in form 182 N are required. Moreover, based on a written application from the employee, he may be issued other documents related to employment with a former employer.

Important

After this, the dismissal procedure can be considered completed.

Step-by-step instructions for early termination of the contract

The first, and most important thing during the early dismissal procedure when reducing staff on the initiative of an employee is to competently approach the writing of the application. It must indicate the reason: reduction in the number of employees. A sample application will look something like this:

Name of the enterprise, full name of the head.
Full name of the person being dismissed.
Reasons for leaving position (downsizing).
On what basis (Article 80 of the Labor Code of the Russian Federation).
Date and signature.

A special material has been prepared on the topic of reduction by agreement of the parties - we recommend reading it.

It should also be indicated that the employee knew about the upcoming reduction and was familiar with the relevant order. After this, the application is submitted to the manager for signature . If the boss does not mind, he must draw up an order to dismiss the employee. After reviewing and signing the dismissed person, make an appropriate entry in the order journal, make all calculations and issue a work book with a record of removal from position due to layoff.

Required payments and compensations

If the employee has completed everything correctly, and the reason for early dismissal in the order is “due to staff reduction,” then in addition to standard payments, he is entitled to compensation for forced resignation from work.

To be on the safe side, when submitting a resignation letter, it is recommended that the subordinate draw up an agreement with the manager. It should indicate all payments due and the deadlines when the money should be transferred.

Since the worker did not work the required period, all payment calculations will be made based on average monthly earnings. If we take all the payments that are due to an employee upon early resignation, the list will look like this :

Salary for the period worked in the current month.
Payment for unused vacation.
Severance pay.
Average monthly salary (or 60 days if no new job has been found during this time).
An amount equal to the average monthly income if a person joins the labor exchange within 14 days after leaving work.

You may find the following information interesting: early dismissal payments for staff reductions.

What to write in the work book when terminating an employment contract early

Based on the logic of the content of the procedure itself, it is necessary to enter into the work book as a reason for termination of labor relations a reduction in the number/staff of the organization (clause 2, part 1, article 81 of the Labor Code of the Russian Federation). Approximate content could be as follows:

“Dismissed due to a reduction in staffing levels on the basis of clause 2, part 1 of Art. 81 Labor Code of the Russian Federation."

Next to it is the number and date of the dismissal order, as well as the date the entry was made, the signature and transcript of the signature of the inspector who made the entry in the book. If the company has a seal, it is additionally expected to be affixed. After the specified entry is made, the person who quits must receive the book in hand.

Procedure

Submitting an application

An employee who wishes to cancel an employment contract on his own initiative must know all the intricacies of correctly writing an application. The success of the subsequent dismissal process and receipt of benefits depends on this.

The wording of the statement is clear, there is no double meaning. It must be written that the dismissal occurs due to staff reduction, and not at personal discretion. The fact is that when calculating dismissal payments, you have to refer to different articles.

In the application, the employee is obliged to state that he knows about his layoff, write the date of this deadline, and list all the proposed vacancies to him, if this took place. When writing a statement, you need to emphasize that the employee wants to terminate the employment agreement before the time of layoff comes.

It is important to indicate that he expects to receive payments due to him by law in the current situation.

The application must contain the following information:

Employer's name;
Full name and position of the worker who was laid off;
text of the application (meaning – permission to terminate the employment agreement early);
basis – part 3 of Art. 180 Labor Code of the Russian Federation;
date of signing the application;
employee signature.

You can write an application for early dismissal due to staff reduction only after the order for the enterprise has been officially published and the employee has signed a notice indicating the deadline.

Submitting an order before the warning period expires

When the head of the organization is not against the dismissal of an employee, then before the end of the notice period he must issue a corresponding order. Documentation is drawn up in the first person and contains the following information:

full name of the organization;
requirement to dismiss (for example, Inna Ivanovna Sidorova, senior manager of the department for work with legal entities) at his request;
date of dismissal;
requirements for calculations for submission to the accounting department;
date, signatures and company seal.

The dismissal order in case of staff reduction without the need to work for 2 months must be provided by the boss to the resigning employee under his personal signature, and then it is registered in the order journal.

Important! To prevent various misunderstandings, you need to be on the safe side. To do this, the employer and the employee leaving the organization will have to draw up an agreement in two copies.

The application must contain all the benefits that the former employee is claiming and the time frame when he will receive them.

After this, the employee can calmly go to the accounting department and collect the necessary remuneration, without fear of being fired at his own discretion.

What is included in the work book?

After the dismissal of an employee, a corresponding entry must appear in his work book under the date indicated in the dismissal order.

In the work book, in the line “Grounds for termination of an employment contract (dismissal)” there will be the following entry: “In connection with the reduction of the organization’s staff, clause 2, part 1, article 81 of the Labor Code of the Russian Federation.”

List of payments due upon early dismissal

Personnel who resign due to staff optimization, but before the end of the work period after being informed of the termination of the employment contract, are entitled to the same payments as in the case of termination of employment strictly after the end of a two-month period. The composition of the amounts that must be paid to the employee is as follows:

Payment for actual work performed on days worked in the month of termination of the employment contract.
The employee is paid compensation in the amount of the average salary for the time period remaining until the end of the working period after notification of dismissal (clause 3 of Article 180 of the Labor Code of the Russian Federation).
Severance pay in the amount of average monthly salary (paid within 2 months).
If an employee registered at the employment center within 2 weeks after termination of the contract and was unable to conclude an agreement with the new employer, he is entitled to be paid the average salary for the third month after dismissal (Article 178 of the Labor Code of the Russian Federation).

Dismissal of an employee before the scheduled layoff date

Sometimes situations arise when an employee needs to leave work without waiting for the day of the planned dismissal. What the boss should do in this case will be outlined below.

When is it possible

The initiative always comes from management. Warning about impending dismissal is given 2 months in advance. But employees can speed up the process for personal reasons. Early termination of an employment contract in case of staff reduction is provided for in Art. 180 (Labor Code of the Russian Federation). An employee may request to terminate his official duties while maintaining severance pay without waiting for the official day of dismissal after 2 months.

Attention! The manager does not have the right to terminate an employment contract in the event of layoffs ahead of time without the consent of the employee.

Reasons for employee initiative

The reasons for the decision may vary. As a rule, employees, knowing about the upcoming dismissal, find new jobs and do not want to stay in their old ones for the two months required by law after the announcement of the layoff. Reasons related to family circumstances, health conditions or reaching retirement age arise less frequently, and notification of impending dismissal activates them.

To obtain permission to terminate the contract early, the employee submits an application. Requesting dismissal does not guarantee a positive result. Approval of a request is a manager’s right, not an obligation.

Entitled payments

There is no single form for requesting early dismissal before the expiration of the layoff warning period, but an employee can mention forced upcoming resignation as a reason, since the due payments will depend on this. It is recommended that you document your request for statutory compensation in full in writing.

Advice! Of course, it is economically beneficial for the employer when an employee leaves on his own initiative. But if the petition does not contain the phrase “at his own request,” the former worker is entitled to payments upon early dismissal in case of a full reduction in staff.

The required funds are formed through the following accruals:

salaries for hours worked in the last month;
compensation for unused vacation periods;
payment for the entire period before the agreed date of dismissal due to reduction;
days of forced unemployment before finding a new job (no more than two months).

In the latter case, the third month is paid if the person is officially registered with the employment service. This is a kind of additional compensation for the early dismissal of an employee. You must register two weeks after leaving work and receiving your paycheck.

Salary reimbursement means average earnings over the last 12 months, excluding vacations, business trips and sick leave.

Sometimes an employment contract provides for increased amounts of severance pay. In such circumstances, the employer is obliged to pay the designated funds, and not the minimum amount regulated by law. Compensation for early dismissal during layoffs also includes sick leave pay, if any.

A reasonable question arises: is it necessary to pay tax on the funds owed. The output list of payments is guaranteed, is not considered as income and cannot be subject to personal income tax. There is also no mandatory insurance contribution. But it should be remembered that this only applies to three times the average earnings of workers. Everything that exceeds it is subject to taxation (Article 217 of the Tax Code of the Russian Federation).

It is important to know! If for some reason the former employee does not agree with the payments accrued to him, he can sue the employer in accordance with Art. 392 (Labor Code of the Russian Federation).

The KOSG code when designating compensation for unused vacations has been changed. When issuing certificates for 2021, it is necessary to apply the new rules (NFS Order No. ММВ-7-11 / [email protected] ).

Possible violations by the employer upon early termination of the contract

One of the most common tricks on the part of the employer during dismissal is pressure on the employee to formalize the early termination of the employment relationship at his own request or by agreement of the parties.

In this case, the company will be able to save on additional payments, because no compensation is provided for the employee for such reasons for parting with the employer.

Attention

The employee should clearly write in his resignation letter the conditions under which he agrees to terminate the contract and what payments he is entitled to. Thus, he will protect himself from abuse by the employer.

In addition, the organization should understand that any pressure on an employee to make a decision beneficial to the company is illegal and can lead to negative consequences. In particular, forcing the employee to terminate the contract at his own request, through psychological influence on the employee, will most likely lead to litigation.