Closing a business: how to leave work early? Termination of business contracts in connection with liquidation Is it necessary to terminate the contract if the organization is liquidated?

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. Dear readers! The article talks about typical solutions legal issues , but each case is individual. If you want to know how solve exactly your problem

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Concept Liquidation is the actual cessation of activity legal entity or.
individual entrepreneur
There are voluntary and forced liquidations. 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).

Video: latest changes

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 Deadline is one of mandatory conditions

agreement. 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, 2020 . That is,, January 01, 2020 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 side, that is, the Internet provider, will connect the entire office, and As soon as the party signs the certificate of services performed, contractual obligations are considered terminated.

Termination Procedure

The decision to liquidate an enterprise is the basis for the termination of all contractual obligations. As soon as Refuse to terminate obligations completely the party has no right. But they have the right to demand payment from the liquidated company monetary compensation

. 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.

judicial procedure

The court is guided by the fact that during long-term cooperation it is possible:
Detect systematic violations of contract clauses;
It is precisely such violations that the defendant, that is, the liquidated enterprise, refers to and wins the case.
Many contracts have a unilateral termination clause;

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. IN otherwise

, employees can sue to have their dismissal invalidated and to receive additional compensation. Upon termination employment contract In connection with the liquidation of the organization, all employees must be notified 2 months

before the expected closing date. Notification occurs at. 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; termination date;
labor relations

signature of an authorized person. The notification must be made in 2 copies. One remains with the employee, and another
If the employee refuses to sign the notice, then an act of refusal to sign must be drawn up. He signs authorized person And 2-skills witnesses.

Through In connection with the liquidation of the organization, all employees must be notified 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 contractual relationship terminated from such date by agreement of the parties.

It is better to draw up an agreement in in writing, having discussed in it all the conditions for terminating the lease agreement. The agreement is drawn up in The notification must be made in 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 In connection with the liquidation of the organization, all employees must be notified. 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 the lease agreement. If there is such a possibility, then it is better for the parties to come to an agreement 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. 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. under a supply or purchase agreement.

Liquidation or bankruptcy does not occur after one day. This requires certain prerequisites. Therefore, in order to avoid legal proceedings, management is recommended 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 are completed, an entry will be made in the Unified State Register of Legal Entities that this person liquidated.

After this, it is almost impossible to present any demands to the debtor. For this there is certain period, 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 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.

An individual entrepreneur is liable for the debts of the company with all his property, as an individual.
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 In connection with the liquidation of the organization, all employees must be notified, 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 The notification must be made in 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.

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?

Qualified legal assistance Employees of the Radomas Center will assist 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 This category usually includes all agreements with an automatic extension mechanism. 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 regarding the right to unilateral refusal from execution of the contract;

liquidation of an LLC is not a violation of contractual obligations under long-term contracts Therefore, the issue of applying penalties is extremely rarely considered here.

Termination of relationships for one-time transactions

If one-time agreements are terminated, it will be much more difficult to avoid financial losses. 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;

appeal to arbitration court;

excitation arbitration process;

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 drafting stage interim balance all settlements are suspended, and the corresponding application is sent to the arbitration court.

In such a situation, the claims of counterparties arising from unilateral termination 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 pre-trial. 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 commercial relations with minimal losses for the company.

Liquidation of an enterprise leads to the complete cessation of its activities. As a result, employment contracts with employees are terminated. In this article we will provide step by step instructions and we will tell you in what order dismissal occurs in connection with the liquidation of the organization.

Let's turn to the legislation

But the relationship between employees and the employer does not end there - in accordance with Article 178 of the Labor Code of the Russian Federation, severance pay is paid to dismissed employees for another 2 months. This guarantee is provided to provide financial support to dismissed workers until they are hired. Those who manage to find new job earlier, from that moment the right to benefits is lost.

The period for receiving severance pay may be extended by another month if former employee of the liquidated company, no later than 2 weeks after dismissal, he contacted the employment service, but was unable to find a job within the allotted 2 months.

Step 8. We provide information to the military registration and enlistment office and the FSSP

If the organization has workers who are subject to military registration, information about their dismissal should be sent to the territorial military registration and enlistment office. This should be done no later than 2 weeks from the date of dismissal. The notification form can be obtained from the authority where the information is provided (Appendix 9 to Methodological recommendations General Staff of the RF Armed Forces for the conduct military registration in organizations).

If there are employees in the organization who are subject to executive documents, information about their dismissal is immediately, in order to avoid a fine, sent to the territorial division of the FSSP, where the enforcement proceedings. And the writs of execution must be returned.

As the first basis for termination of an employment contract at the initiative of the employer, the Labor Code of the Russian Federation provides for the liquidation of an organization or termination of activities by an individual entrepreneur (clause
1 tsp. 1 tbsp. 81 Labor Code of the Russian Federation).
Compared to the Labor Code of the Russian Federation, the innovation of this article Labor Code The Russian Federation indicated that the basis for termination of an employment contract can be not only the liquidation of the organization, but also the termination of activities by the employer - an individual. Revision of clause 1, part 1, art. 81 of the Labor Code of the Russian Federation until June 30, 2006 sounded like this: “liquidation of an organization or termination of activities by an employer - an individual.”
However, Federal Law No. 90-FZ of June 30, 2006 “On Amendments to the Labor Code Russian Federation..."*(40) changed clause 1, part 1, article 81, stating it as follows: “liquidation of an organization or termination of the activities of an individual entrepreneur.”
At the same time, in Art. 20 The Labor Code of the Russian Federation expanded the list of individuals who are parties to an employment contract, including private notaries, lawyers and other persons whose professional activity in accordance with federal laws subject to state registration and/or licensing. Individuals also include persons who entered into labor relations with employees for the purpose of personal service and assistance with housekeeping.
Thus, the current version of clause 1, part 1, art. 81 of the Labor Code of the Russian Federation diverges from Art. 20 Labor Code of the Russian Federation.
In addition, in Art. 20 of the Labor Code of the Russian Federation, other entities entitled to enter into employment contracts are also indicated as employers.
At the same time, in paragraph 28 of the resolution of the Plenum Supreme Court RF dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” with amendments dated December 28, 2006 * (41) the provision was retained according to which, upon termination of the employer’s activities - individual, who did not have the status of an individual entrepreneur, it should be understood that such an employer actually ceased its activities.
Therefore, in our opinion, it is necessary to change clause 1, part 1, art. 81 of the Labor Code of the Russian Federation, as amended: liquidation or termination of the employer’s activities.
This seems to us a significant addition, since this paragraph expands the possibilities of protecting the rights of many employees upon termination of the employer’s activities, because labor legislation RF are provided additional guarantees for employees upon liquidation of the employer compared to other employees.
In addition, changing this norm will make it easier for law enforcers to resolve the issue of terminating an employment contract with the persons specified in Art. 20 of the Labor Code of the Russian Federation as employers, since under the current version the issue of termination of an employment contract with these persons has not been resolved.
Liquidation of an organization is an independent basis for termination of an employment contract at the initiative of the employer * (42).
It would seem clear that for the termination of an employment contract in connection with the liquidation of an organization, it does not matter who exactly and for what reasons made such a decision; the main thing is the termination of activities by a legal entity without the transfer of rights and obligations by way of succession to other persons and inclusion in the Unified State Register legal entities corresponding record of liquidation of the organization.
At the same time, the Labor Code of the Russian Federation, and after it the Plenum of the Supreme Court of the Russian Federation * (43) introduce uncertainty into such fairly clear regulation.
Thus, the Labor Code of the Russian Federation in Part 4 of Art. 81 equates to the liquidation of an organization the termination of the activities of a branch, representative office or other separate structural unit of the organization located in another locality.
In the resolution of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (as amended on December 28, 2006) * (44) the Plenum of the Supreme Court of the Russian Federation explained that structural divisions should be understood as branches, representative offices, as well as departments, workshops, areas, etc. (clause 16).
We should agree with R.F. Galieva*(45), that Art. 61 of the Civil Code of the Russian Federation provides for the possibility of liquidation only of a legal entity, therefore the mentioned provision of paragraph 1 of Part 4 of Art. 81 of the Labor Code of the Russian Federation regarding the powers of separate structural units.
Firstly, separate structural units are not employers (Article 20 of the Labor Code of the Russian Federation), and therefore are not a party to the employment contract (Article 56 of the Labor Code of the Russian Federation) and therefore enter into an agreement on behalf of a legal entity, which must bear all obligations arising from it . The concept of a legal entity is given in the Civil Code of the Russian Federation, and it is applied by the Labor Code of the Russian Federation, since it does not provide for anything else.
Secondly, the liquidation of a legal entity is considered completed, and the legal entity is considered to have ceased to exist after making an entry in the Unified State Register of Legal Entities (Article 63 of the Civil Code of the Russian Federation), but this does not happen when a structural unit is liquidated.
Thirdly, employees are warned about the upcoming dismissal due to the liquidation of the organization at least two months before the dismissal. Calculus given period is made from the moment the decision of its founders (authorized body) or the court is made (Article 61 of the Civil Code of the Russian Federation), and not from the date of making an entry in the Unified State Register of Legal Entities.
Consequently, in case of exclusion of representative offices or branches, as well as other separate structural divisions from constituent documents The legal entity that created them and those working in them may not have their employment contracts terminated under clause 1, part 1, art. 81 of the Labor Code of the Russian Federation, since the liquidation of the organization did not occur, and according to clause 2 of part 1 of art. 81 of the Labor Code of the Russian Federation, i.e. to reduce the number or staff of employees in compliance with the guarantees provided for in Art. 179 and 180 of the Labor Code of the Russian Federation * (46).
E.A. comes to the same conclusion. Ershova, who points out that, since Art. 61 of the Civil Code of the Russian Federation establishes the possibility of liquidation only of a legal entity; the last part of Art. 81 of the Labor Code of the Russian Federation: “In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another location, 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.” Article 55 of the Civil Code of the Russian Federation provides for only two types of separate structural divisions - branches and representative offices that are not legal entities.
In this regard, the following conclusions can be drawn:
1. Separate structural units are not a party to an employment contract; employers enter into employment contracts on behalf of a legal entity - an organization that must bear all obligations arising from the employment contract.
2. After excluding representative offices or branches from the constituent documents of the legal entity that created them, with the organization’s employees working in separate structural divisions, employment contracts may be terminated not under paragraph 1 of Art. 81 of the Labor Code of the Russian Federation (since the liquidation of the organization did not occur), and according to clause 2 of Art. 81 of the Labor Code of the Russian Federation (reduction in the number or staff of employees) in compliance with the guarantees provided for in Art. 179 and 180 of the Labor Code of the Russian Federation * (47).
Thus, we can come to the conclusion that expanding the concept of “liquidation of an organization” and equating with it cases of liquidation of branches, representative offices, separate divisions, as well as workshops, departments, and sections is not justified.
At the same time, if one can still somehow agree with the broad concept of liquidation of an organization in relation to branches and representative offices, since, firstly, the creation and liquidation of branches and representative offices require amendments to the statutory documents of the organization, which somewhat reduces the uncontrollability of dismissals, and, secondly, -secondly, when liquidating a branch or representative office located in another area, it is quite obvious that the employer cannot fulfill the requirements of Part 3 of Art. 81 of the Labor Code of the Russian Federation and offer the employee another vacant position or job available to the employer in a given area, then equating the concept of “liquidation of an organization” with the concept of “liquidation of a workshop, department, site”, in our opinion, in practice will inevitably lead to abuses by an employer who will not be bound by complex procedures for liquidating an organization or making changes to the charter documents, but can freely form entire departments and workshops of employees he does not like, and then dismiss them in accordance with clause 1, part 1, art. 81 of the Labor Code of the Russian Federation, without offering other vacant positions and works.
Thus, from our point of view, an excessively broad interpretation of the concept of “liquidation of an organization” is absolutely unfounded and, moreover, harmful to the existence of labor relations between the employer and the employee, in addition, it absolutely does not correspond to any norms Civil Code RF, nor with the norms of the Labor Code of the Russian Federation.
Another problem with applying such grounds for dismissal as dismissal in connection with the liquidation of an organization is that there are often cases when the organization is not essentially liquidated, but dismissal under clause 1, part 1, art. 81 of the Labor Code of the Russian Federation still happens.
As a rule, this is due to the fact that the difference between liquidation and reorganization is not always obvious to the law enforcement officer*(48). Such an unlawful identification is due to an incorrect interpretation of the procedures associated with the use of the term “termination of a legal entity” and the obligation to carry out state registration of the termination of legal entities.
Termination of a legal entity can be carried out, in particular, by merging it with another legal entity or by dividing the legal entity. In these cases, a legal entity is reorganized in the form of merger or division.
In accordance with paragraph 1 of Art. 57 of the Civil Code of the Russian Federation, reorganization of a legal entity can be carried out in such forms as merger, accession, division, separation, transformation.
It should be taken into account that both in the event of liquidation of a legal entity and in the event of its reorganization, the corresponding entries are made in the state register of legal entities.
Clause 4 of Art. 57 of the Civil Code of the Russian Federation establishes that a legal entity is considered reorganized, with the exception of cases of reorganization in the form of merger, from the moment of state registration of newly emerged legal entities.
When a legal entity is reorganized in the form of the merger of another legal entity with it, the first of them is considered reorganized from the moment an entry on the termination of the activities of the merged legal entity is made in the Unified State Register of Legal Entities.
Thus, it is clear that even during reorganization, situations are possible when an entry about the termination of the activities of a legal entity is made in the Unified State Register of Legal Entities. However, it should be borne in mind that when a legal entity is reorganized in the form of merger, succession still takes place.
The Labor Code of the Russian Federation does not allow the termination of labor relations with employees who worked in organizations that ceased their activities due to the reorganization of the employer (organization), with the exception of:
Reductions in the number or staff of an organization's employees, when the employment contract is subject to termination on the grounds provided for in clause 2, part 1, art. 81 Labor Code of the Russian Federation;
An employee’s refusal to continue working in connection with the reorganization (regardless of its form) of the organization. In this case, the employment contract is subject to termination on the grounds provided for in clause 6, part 1, art. 77 Labor Code of the Russian Federation.
As I.A. points out. Kostyan * (49), similar problems arise during the application of the rules regulating the procedure for registering the termination of a legal entity.
Thus, in accordance with clause 5 of the Decree of the Government of the Russian Federation of June 19, 2002 N 438 “On the Unified State Register of Legal Entities” * (50), the basis for making a record of termination in the state register unitary enterprise, whose property complex is sold or made as a contribution to authorized capital open joint stock company, is the decision on state registration. Such a decision is made by the registration authority on the basis of relevant documents submitted by the Ministry property relations RF, authorized body subject of the Russian Federation or an authorized body municipality who decided on the terms of privatization.
IN in this case the rules for terminating the activities of a legal entity - a unitary enterprise (organization) in connection with the sale or contribution to the authorized capital of an open joint-stock company of a property complex (enterprise) are regulated. An organization (legal entity) ceases its activities as a result of reorganization; in addition, there is a change in the owner of the property sold or contributed as a contribution to the authorized capital of an open joint-stock company.
Thus, in this case, there is no such basis for termination of the employment contract as liquidation of the organization. Most likely, the rule for terminating an employment contract on grounds related to a change of owner should be applied here. In this case, in accordance with clause 4, part 1, art. 81 of the Labor Code of the Russian Federation, an employment contract is subject to termination at the initiative of the employer with the head of the organization, his deputies and the chief accountant. For other employees, the rules established by clause 6, part 1, art. 77 Labor Code of the Russian Federation.
It is important how the fact of liquidation of an organization is determined, i.e. courts must check whether the organization has actually been liquidated and find out whether the liquidated organization has legal successors*(51).
In this regard, judicial practice * (52) is interesting.
By order of the Central Bank of the Russian Federation dated July 2, 2002 N OD-441, the interregional repositories No. 2 and No. 3 of the Central Bank of the Russian Federation in Moscow were abolished and the Interregional Repository (Moscow) of the Central Repository of the Central Bank of the Russian Federation was formed. This order served as the basis for the dismissal of T. and. employees. Sh. according to clause 1 of Art. 81 Labor Code of the Russian Federation. Having disagreed with the dismissal, the workers filed a lawsuit for reinstatement at work, payment for forced absence time, compensation moral damage. After going to court, an order was issued to dismiss the plaintiffs on another basis - under paragraph 2 of Art. 81 of the Labor Code of the Russian Federation, the basis for changing the wording of dismissal in the order indicates treatment of statement of claim to court.
Cases were repeatedly considered by the judiciary, decisions of Meshchansky district court dated October 13 and October 27, 2004, left unchanged by the Judicial Collegium for civil cases Moscow City Court by rulings of January 14 and March 16, 2004, in satisfaction claims denied.
In connection with the above, it is necessary to provide a legal analysis.
In paragraph 1 of Art. 81 of the Labor Code of the Russian Federation provides for the possibility of dismissing employees in connection with the liquidation of an organization, i.e. legal entity. Evidence of the liquidation of an organization is its exclusion from the register of legal entities. The defendant in this case has not been excluded from the register of legal entities. Therefore, the use of this basis for dismissing the plaintiffs is contrary to the law.
In accordance with Part 5 of Art. 75 of the Labor Code of the Russian Federation, during the reorganization of an organization, as well as its structural divisions, labor relations with the consent of the employee continue. The foregoing allows us to conclude that the defendant is obliged to maintain an employment relationship with the plaintiffs, since they did not object to the continuation of work in the newly created structural unit on the basis of the abolished storage facilities.
Conclusion judiciary that the plaintiffs do not have the right to be reinstated at work in the newly created structural unit also contradicts Art. 75 of the Labor Code of the Russian Federation, from the content of which it follows that this right appeared to the plaintiffs due to the employer's corresponding obligation to maintain employment relations as a result of the reorganization of the structural unit in which they worked.
When considering these civil cases, the court incorrectly identified the employer. In accordance with Part 2 of Art. 20 of the Labor Code of the Russian Federation, an employer can be recognized as a legal entity or another entity vested with the right to conclude employment contracts. The employment contract with the plaintiffs was concluded by the Central Bank of the Russian Federation, therefore, it is the employer, it has an obligation to maintain labor relations with the plaintiffs by making an appropriate entry in their work books. The employer, represented by authorized persons who have the authority to conclude it, must also have the right to terminate an employment contract. In accordance with Part 1 of Art. 57 of the Labor Code of the Russian Federation, the place of work is the structural unit in which the labor function is performed. In this connection, when reorganizing a structural unit, the employer must make an entry in the employees’ work books about the emergence of a new structural unit in which they will work.
The court changed the subject and basis of the claim, assessed the dismissal of the plaintiffs under paragraph 2 of Art. 81 of the Labor Code of the Russian Federation, while the plaintiffs made claims about the illegality of dismissal under clause 1 of Art. 81 of the Labor Code of the Russian Federation, reinstatement at work, payment for forced absence, compensation for moral damage. In accordance with Art. 39 of the Code of Civil Procedure of the Russian Federation, the court does not have the right to change the subject and basis of the claim, since only the plaintiff has this right.
In addition, when resolving the dispute, the fact that the employer issued an order to dismiss workers on a new basis, provided that the employment relationship ceased to exist, was not taken into account. Therefore, this order should not entail legal consequences, as issued in relation to persons who do not have an employment relationship with the employer. Listed violations of norms procedural law are significant because they led to a substantively incorrect court decision.
When dismissing employees on the basis provided for in clause 1, part 1, art. 81 of the Labor Code of the Russian Federation, it can be distinguished by at least, two features characteristic of this type of dismissal. They relate to the period of notice to the employee about the upcoming dismissal and payment of monetary compensation.
1. Notice period.
In accordance with Art. 180 of the Labor Code of the Russian Federation, the employer is obliged to warn each employee personally and against signature at least two months before dismissal.
The Labor Code of the Russian Federation establishes a minimum period during which an employee must be warned of an upcoming dismissal, i.e. the employer has the right to warn the employee longer in advance.
The employer, with the written consent of the employee, has the right to terminate the employment contract with him without notice of dismissal two months in advance, while simultaneously paying 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.
Such compensation is paid to the employee in addition to severance pay.
It should be borne in mind that an employee dismissed with his written consent without notice of dismissal two months in advance also retains the right to average monthly earnings for the period of employment general principles. Unlike the Labor Code of the Russian Federation, which provided for different levels of compensation to employees depending on whether the employment contract with them was terminated in connection with the liquidation of the organization or in connection with a reduction in the number or staff of employees, the Labor Code of the Russian Federation establishes general (uniform) conditions for the provision of such guarantees *(53).
The payment of additional compensation upon termination of an employment contract in connection with the liquidation of an organization without warning the employee of dismissal two months in advance is not made by the legislator dependent on who initiates the dismissal without warning. In this regard, the specified additional compensation must be paid to an employee dismissed without warning, both in the case when dismissal on such conditions was proposed by the employer, and when the employee himself proposed such conditions, and the employer agreed with them. It is only important that the employee’s consent (his desire) be expressed in writing. In any case, dismissal is made with reference to the relevant paragraph of Part 1 of Art. 81 of the Labor Code of the Russian Federation (clause 1 - liquidation of an organization) * (54).
Employees who have entered into an employment contract for a period of up to two months. Their warning is carried out in person and against signature at least three calendar days in advance (Part 2 of Article 292 of the Labor Code of the Russian Federation);
Workers engaged in seasonal work. Their warning is carried out in person and against signature at least seven days in advance. calendar days(Part 2 of Article 296 of the Labor Code of the Russian Federation).
Personal warning means that each individual employee must be personally warned of the upcoming dismissal. That's why this condition is not considered fulfilled if employees received such a warning, for example, at general meeting labor collective or at a meeting of employees of a separate structural unit of the organization. A personal warning must be confirmed by the employee’s personal signature * (55).
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” * (56) when making a decision to liquidate an organization, reduce the number or staff of the organization’s employees and the possible termination of employment contracts with employees, the employer is obliged to inform in writing about this to the employment service authorities no later than two months before the start of the relevant activities and indicate the position, profession, specialty and qualification requirements to them, the conditions of remuneration for each specific employee.
Thus, the employer is obliged:
Warn the employee about the upcoming dismissal at least two months in advance;
The warning must be given personally and in writing;
Two months before the layoffs, inform the employment service authorities in writing about the termination of employment contracts.
2. Payment of compensation.
In accordance with Art. 178 of the Labor Code of the Russian Federation, upon termination of an employment contract in connection with 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 earnings 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 from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it (Article 178 of the Labor Code of the Russian Federation).
The provisions of the Labor Code of the Russian Federation do not provide for the employer’s obligation to explain to the employee the need to contact the employment service within two weeks. In our opinion, such clarification seems necessary; moreover, it should be in writing, since this is directly related to the guarantees provided to employees in connection with their dismissal without cause.
So, according to Art. 318 of the Labor Code of the Russian Federation for persons dismissed from organizations located in the Far North and equivalent areas, average earnings remains valid for six months from the date of dismissal for the period of employment.
All settlements with employees dismissed in connection with the liquidation of the organization are made by the liquidation commission. When making calculations, the rules established by Art. 140 Labor Code of the Russian Federation. In accordance with it, payment of all amounts due to the dismissed employee from the employer must be made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the employee submits a request for payment.
For delays in payments due to an employee upon dismissal, the employer is liable to the employee financial liability, provided for in Art. 236 Labor Code of the Russian Federation. In accordance with it, in this case, the employer will be obliged to make payments with interest (cash compensation) in the amount of not less than 1/300 of the Bank of Russia refinancing rate in force at that time from amounts unpaid on time for each day of delay starting from the next day after deadline payments up to and including the day of actual settlement. The specific amount of monetary compensation paid to the employee is determined by a collective or labor agreement * (57).
An analysis of court cases shows that for the protection of violated rights, those dismissed under paragraph 1 of part 1 of Art. 81 of the Labor Code of the Russian Federation, workers apply not so often, which indicates a fairly high level legal regulation this basis. The resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” * (58) determined that when considering cases of reinstatement at work of a person with whom the employment contract was terminated at the initiative of the employer, the obligation to prove the existence legal basis for dismissal and compliance established order dismissals are the responsibility of the employer.
It is stated that an employee dismissed without legal grounds or in violation of the established procedure for dismissal is subject to reinstatement to his previous job. If it is impossible to restore him to his previous job due to the liquidation of the organization, the court declares the dismissal illegal and obliges the liquidation commission or the body that made the decision to liquidate the organization to pay him the average salary for the entire period of forced absence. At the same time, the court recognizes the employee as dismissed under paragraph 1 of Art. 81 of the Labor Code of the Russian Federation in connection with the liquidation of the organization.
Analysis of the presented material allows us to draw the following conclusions.
1. Expanding the concept of “liquidation of an organization” and equating with it cases of liquidation of branches, representative offices, separate divisions, as well as workshops, departments, and sections is not justified.
2. Separate structural units are not a party to the employment contract; employers enter into employment contracts on behalf of a legal entity - an organization that must bear all responsibilities arising from the employment contract.
In case of exclusion of representative offices or branches from the constituent documents of the legal entity that created them, with employees of the organization working in separate structural divisions, employment contracts may be terminated not under paragraph 1 of Art. 81 of the Labor Code of the Russian Federation (since the liquidation of the organization did not occur), and according to clause 2 of Art. 81 of the Labor Code of the Russian Federation (reduction in the number or staff of employees) in compliance with the guarantees provided for in Art. 179 and 180 of the Labor Code of the Russian Federation * (59).
Equating the concept of “liquidation of an organization” with the concept of “liquidation of a workshop, department, site,” in our opinion, in practice will inevitably lead to abuses on the part of the employer, who will not be bound by complex procedures for liquidating an organization or making changes to the statutory documents, but may freely to form entire departments and workshops of workers he dislikes, in order to then dismiss them in accordance with clause 1, part 1, art. 81 of the Labor Code of the Russian Federation, without offering other vacant positions and jobs.
3. The Labor Code of the Russian Federation establishes the procedure for terminating an employment contract under clause 1, part 1, art. 81. Employees must be notified personally of their upcoming dismissal on this basis, against signature, at least two months before dismissal. The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the 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 (Parts 2 and 3 of Article 180 of the Labor Code of the Russian Federation) .
When dismissed on this basis, after the expiration of the notice period, the 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).
4. In exceptional cases, the average monthly salary is retained by a dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after dismissal the employee applied to this body and was not employed by it (Article 178 of the Labor Code of the Russian Federation ).
In practice, difficulties arise in applying the above norm, since the legislator has not established a list of exceptional cases, in the event of which the average monthly salary is retained by the dismissed employee for the third month from the date of termination of the employment contract, while the employment service body, at its discretion, decides which cases are exceptional.
This situation, in our opinion, cannot be considered correct. The list of such cases must be determined by law or this norm must be clarified by providing in all cases to employees severance pay for the third month when contacting the employment service within two weeks.
5. The provisions of the Labor Code of the Russian Federation do not provide for the obligation of the employer to explain to the employee the need to contact the employment service within two weeks. In our opinion, such an explanation seems necessary; moreover, it must be done in writing, since this serves to protect the interests of employees in connection with their dismissal without cause.
For violation of this obligation, the employer will be liable for general rules, provided for in Art. 5.27 Code of Administrative Offenses of the Russian Federation "Violation of labor and labor protection legislation."