by virtue of Art. 180 of the Labor Code can be initiated by the employer with the consent of the employee, but the Constitutional Court gave its interpretation of this norm. Read about this and other nuances of early dismissal when reducing staff in this article.

How can you terminate a contract with a redundant person: only at the initiative of the employer or also at the employee’s own request

The right to early dismissal when an employee is laid off or an employer is liquidated is provided for in Art. 180 TK. However, it is formulated as the right of the employer, with the consent of the employee, to terminate the employment relationship early, which gave rise to some uncertainty.

There is an opinion that such wording excludes the employee’s right to demand early termination in accordance with Art. 180 Labor Code, i.e. with retention of the right to additional compensation. An employee can express a desire to resign based on Art. 80 TK. If the worker voices such a desire during the period allotted for notice of layoffs, the employer dismisses him without paying additional compensation.

Clarity in the interpretation of Art. 180 of the Labor Code was introduced by the Constitutional Court. 09.29.2015 in determination No. 1881-O, indicating that there are no obstacles to workers filing an application for dismissal. In this case, the employer's consent will be required.

Conclusion: both parties can initiate early termination of the employment relationship, but dismissal is possible only with the consent of the opposite party. This ensures a balance between the interests of the employer and employee.

Step-by-step instructions for early termination of an employment contract

It is possible to begin the early dismissal procedure only after warning the employee and before the dismissal.

According to Art. 180 of the Labor Code, the employer personally warns each dismissed employee 2 months in advance about the planned reduction or liquidation of the company. The ruling of the Constitutional Court dated September 24, 2013 No. 1246-O states that a 2-month period is the minimum. The possibility of warning the employee in advance is not excluded; on the contrary, such a warning will provide more favorable conditions for new employment of the dismissed person.

The Labor Code has established shortened warning periods in 2 cases:

• for seasonal workers - a week (Article 296);
• for a fixed-term employment contract - 3 calendar days (Article 292).

After a warning, the procedure for early dismissal consists of 5 steps:

Step 1: expression of initiative by the employee or employer.

The Labor Code does not contain requirements for the form of expression of such an initiative. Accordingly, it can be expressed orally or in writing.

Step 2: approval.

To terminate the relationship early, the parties must reach an agreement. If the court finds that the second party lacks consent, most likely a ruling will be made to cancel the dismissal (for example, this is what the Moscow City Court decided in its appeal ruling dated August 16, 2013 No. 11-26551).

In Art. 180 of the Labor Code states that an employer who has expressed a desire to terminate a contract early must obtain the written approval of the worker.

The Labor Code does not contain instructions on the form of consent of the employer when putting forward an initiative by an employee. It seems that obtaining written consent from the organization when reaching an agreement is not necessary, since moving to the next step may serve as evidence of the employer's intention to terminate the contract early.

IMPORTANT! Once an agreement is reached, the employee must understand the consequences of early termination. For example, the Moscow City Court, in its appeal ruling dated July 10, 2014 No. 33-27118, concluded that after receiving the employee’s consent to dismissal before the warning period expires, the employer is no longer obliged to offer him vacancies.

Step 3: registration.

Grounds for dismissal under Art. 84.1 of the Labor Code is an order for early dismissal, drawn up in free form or according to T-8, approved. Resolution of the State Statistics Committee of the Russian Federation No. 1 of 01/05/2004. The employee signs the order, thereby confirming the fact of familiarization with it. If desired, the employee can receive a copy of this document.

In addition to the order, the personnel service draws up a calculation note and makes an entry about the dismissal in the work book.

Step 4: calculation.

On the last day of work, calculations are made according to Art. 140 TK:

• the employer pays the employee:
  - unpaid wages, vacation pay, etc.;
  - additional compensation.
• the employee pays the employer:
  - compensation for actual damage caused directly by the employee.

Step 5: issuance of documents.

Simultaneously with the payment, the employee receives his work book, and, upon a separate request, also certified copies of documents.

Sample application for early dismissal upon dismissal due to staff reduction

The employee expresses a desire to terminate the contract early orally during a conversation with the manager or in writing by sending him an application.

There is no unified application form, but practice is based on the following content:

1. Standard header in the upper right corner containing the names of the parties:
   • an indication of the head of the organization to whom the application is sent;
   • position and name of the employee being laid off.
2. Heading "Statement" in the center.
3. Directly a statement indicating:
   • information about the order in accordance with which the employee is being laid off;
   • request to terminate the employment relationship early on the basis of Art. 180 TK;
   • an indication of the need to provide the dismissed employee with the labor guarantees required, namely, to pay additional compensation.
4. Details: date, signature.

A sample application is available on our website.

IMPORTANT! The employee, in accordance with Art. 80 of the Labor Code, upon dismissal of his own free will, he has the right to withdraw his application until the warning period has expired, if his position has not been offered in writing to another person by way of transfer. The right to return an application also applies to an employee’s application for early dismissal due to staff reduction or liquidation of the employing organization.

Compensation for early dismissal upon liquidation of an employer or layoff of an employee

According to Art. 180 of the Labor Code, an employee dismissed early receives compensation. Its size is approximately equal to the earnings that the employee would have received if he had worked the remaining time before the reduction or liquidation of the organization. The exact amount of compensation is calculated as follows:

Compensation = average earnings × time until notice expires.

Average earnings are defined as the ratio of the entire amount earned in relation to the time worked over the past 12 months (Article 139 of the Labor Code).

The time remaining until the warning period expires is indicated in days. Usually it does not exceed 60, but, as the Moscow City Court indicated in the appeal ruling dated December 4, 2012 No. 11-26294/2012, the Labor Code does not limit the period for which compensation is calculated to 2 months. This period is set as the minimum notice period.

Therefore, if the employer warns the employee about the upcoming dismissal, for example, 4 months in advance, and a month later the parties agree on early dismissal, then the compensation will be calculated based on the 3 months remaining before the end of the notice period.

Let's summarize. When an employer is liquidated or an employee is laid off, the dismissed employee or his employer has the right to express the initiative to terminate the employment contract early. For early dismissal, it is necessary to obtain the consent of the other party.

An employee who is dismissed early is entitled to additional compensation. It is calculated by multiplying average earnings by the remaining days before the expiration of the warning period.

How to correctly fill out an application for early dismissal due to staff reduction, and what nuances of this process need to be taken into account? What is the procedure for an employer when terminating an employment relationship through layoffs?

Features of a regular resignation letter and early dismissal

The form of the application can be arbitrary, but nevertheless there are some rules when writing this document that cannot be ignored.

What must be included in an application for dismissal due to reduction, including if it occurs ahead of schedule:

1. The application must be submitted in writing and indicate the reason for termination of the employment agreement.
2. The employee is required to indicate the exact number of desired departures.
3. The form must contain the employee's signature.

The paper can be given personally to the boss or sent by registered mail with mandatory notification.

Nuance! Whether early dismissal occurs during layoffs or dismissal in the usual manner, it is not recommended to write “I ask you to terminate your employment relationship with me from the 27th.” The preposition “with” is superfluous; it can create confusion, and the employee will be paid off on a different day than he expected.

Example of a sample application.

Example document

If an application for early termination of an employment agreement is written, then in this case there are additional nuances that need to be taken into account. Otherwise, the boss may not agree with the employee’s desire to leave early.

How to write a resignation letter correctly:

1. The employee must indicate that he is aware of the beginning of the process of terminating the employment agreement due to staff reduction (notification date).
2. He needs to indicate if other vacancies in the organization have been offered.
3. Note that he quits before the expiration of two months on his own initiative.
4. Sign and date the document.

Even with early dismissal, the subordinate has the right to receive appropriate payments.

Important! To make it easier to prove in court a violation on the part of the employer in the event of a conflict, lawyers recommend making a copy of the application for early dismissal and putting on it the incoming number, which is assigned to the original document in the office.

A sample application for early dismissal due to staff reduction may look like this.

After a statement in which the employee expresses a desire to resign is given to the boss, an order is issued on the date specified by the subordinate to terminate the employment agreement before two months.

The procedure for dismissal in this case is as follows:

1. An order comes out.
2. It is registered in a special journal.
3. The document is signed by the employee.
4. Payments are made and documents are issued.

Sometimes the manager does not want to pay compensation, then the employees who want to be laid off can file a lawsuit against him or a complaint to the labor inspectorate. The deadline for filing a claim in this case is 1 month from the moment the work is received.

An order for early dismissal due to staff reduction looks the same as a regular order for termination of a contract. Only it must stipulate that the basis is the employee’s personal initiative.

In some cases, the order also specifies the amount of compensation for early care.

Do I need to notify my boss 2 weeks in advance?

Many people don't know Is it necessary to write a letter of resignation when laying off, and someone has a question about whether it is necessary to notify the manager in advance about your departure, if it occurs ahead of schedule.

Part 4 of Article 180 of the Labor Code of the Russian Federation says that the final decision on dismissal before the official reduction remains with the employer, since in this case additional monetary compensation will have to be paid. Article 180 of the Labor Code of the Russian Federation contains the following wording: “The termination of the agreement in this case depends on the decision of the manager.” That is, the employer not only may not agree to the person’s departure, but also propose his own date for issuing the order within a two-month period.

If we turn to judicial practice, those laid off ahead of schedule due to a decrease in the number of staff may qualify for termination of the contract without work, if the reason is valid. For example, a subordinate has found a new job or is moving to another city.

How else can you quit without 14 days notice?

If you don’t want to stay extra days at your workplace, then there are other ways to leave without delay:

• take a vacation and then quit immediately;
• go on sick leave.

From the moment of notification of the upcoming reduction due to a reduction in the number of staff, the person affected by the reduction has the same rights as other employees:

1. In accordance with Article 127 of the Labor Code of the Russian Federation, a person can go on vacation with subsequent termination of the contract, but the final decision on this is made by the director. In this case, the date of issue of the order will be set on the last day of rest.
2. If a subordinate wrote a statement and fell ill, then the contract will be terminated on the date indicated in the statement. In this case, the employer has the right to dismiss the employee while he is on sick leave.

Any employee, having learned that he is among those who will be laid off due to the reorganization of the enterprise, may wish to leave early. This is his right according to the law. But the director is not obliged to agree to this if he has reasons not to dismiss the subordinate or does not have the opportunity to pay additional compensation. Both parties must take into account all the nuances of paperwork if, nevertheless, the decision to leave early is made.

An application for dismissal due to staff reduction is not always drawn up. For example, if this happens within the time frame established by the notice, then there is no need to write it to the employee, because the employer is the initiator of the termination of the employment relationship.

If a staff reduction occurs at an enterprise (a specific position is eliminated or simply the number of work units is reduced), then the employer must make a dismissal in accordance with all established rules, including warning employees in advance (usually 2 months in advance). However, the employees themselves receive a number of rights that they can use until dismissal, namely:

• take advantage of the privileges provided for certain categories of citizens (for example, disabled people, pregnant or single women);
• receive a priority right to retain a position due to a higher level of qualifications and work experience (other criteria may be taken into account);
• for employment in the same organization in another position, if there is a vacancy (it may have fewer requirements for the applicant, but must be suitable for him due to health reasons);
• for early termination of employment (in most cases, this is when a notice of dismissal due to layoff is required);
• to receive compensation and other payments, as well as to register with the employment center.

The employer himself can dismiss a person before the minimum notice period, but in this case he will have to pay compensation for the remaining time. An employee can leave work earlier than this period if he needs to. For example, if he has already found a new job and wants to immediately begin his duties. In this case, a letter of resignation due to staff reduction is written. However, if it is drawn up incorrectly, it may result in the employee not being paid compensation due to the layoff.

How to make an application correctly?

In order not to lose payments and compensation, the employee must correctly draw up a resignation letter. Another difficulty lies in the fact that there is no unified sample - it is filled out in free form. However, it is necessary to maintain a certain structure of the document:

1. “Hat”, which contains information about the parties - the organization and the employee. It is located at the top of the page in the right corner. For a company, it is enough to indicate the name and full name of the manager, and for the employee - his full name and position.
2. Text of the statement. It begins with the word “Statement,” which is written in capital letters in the center of the page immediately after the “header.” Here you must indicate the reason for early dismissal due to layoff.
3. Details. At the bottom of the page, the employee indicates when he would like to terminate the contract. Afterwards the document is signed and decrypted. It is necessary to indicate the date of preparation of the document.

All these parts of the text are required. However, in order not to lose payments, the employee must take into account several more important points:

• the document must express the employee’s consent to early dismissal, because otherwise it will not be possible to dismiss him ahead of schedule;
• the employee must express a desire to resign earlier, and the text must indicate that he is resigning not just of his own free will, but due to staff reduction, simply before the deadline (this is what will allow the employee to receive from the employer all payments due under labor law);
• It is important that the employee expresses his opinion in the application unambiguously, so that the document does not contain any ambiguous phrases that would distort the meaning.

To protect yourself as much as possible, it is better for the employee to indicate the following point by point in the application:

1. he was actually notified of the future reduction (indicating the date of receipt of the information);
2. a list of vacancies offered to him;
3. own desire to quit work ahead of schedule;
4. an indication that the employee is resigning not of his own free will, but because of production necessity, so he expects to receive all the payments and compensation due to him.

The application itself can be written by hand or typed on a computer. It is better to use a standard A4 sheet. In both cases, you will need to sign before submitting it. Additionally, it is worth re-reading the application for errors.

After accepting the application, the employer must prepare all documents for dismissal before the specified date. In this case, working for 2 weeks is not required, so if an employee wants to quit tomorrow, the employer must satisfy his request. And on the day of layoff, make all payments due, including compensation.

When a reduction is planned at an enterprise, the employer notifies its employees in advance. In what cases you need to write a letter of resignation and how to correctly complete all the formalities, you will learn from our consultation.

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What does the law say?

The dismissal of an employee due to staff reduction is regulated by Article 81 of the Labor Code of the Russian Federation. She considers all cases (liquidation of a company, change of owner, etc.).

The difference between downsizing and downsizing is not spelled out, but in practice it is as follows:

• in the first case, the position in the staff list is retained, but the number of employees is reduced;
• in the second, the position is excluded from the schedule, responsibilities are transferred to another specialist.

The Labor Code and the Constitution of the Russian Federation provide certain rights to employees who have been laid off:

• Benefits of maintaining a job. According to Art. 179 of the Labor Code of the Russian Federation, employees with extensive experience and level of qualifications have less risk of being on the list of layoffs, but they must notify the employer in writing of their rights. Privileges can also be used by privileged categories of citizens (single parents, disabled people, pregnant employees, etc.).
• Request for an offer of another position. If this condition is not met, the employee will be able to refer to a violation of the law, and the dismissal order will become invalid.
• After interrupting your employment relationship, register with the employment center. The former employee will be able to receive benefits from his previous place of work for two months.

When staffing is reduced, the manager warns his subordinates in advance by sending a written notice.

They have the right to terminate their employment relationship early without working for two months. This may be required in different cases, for example, to get a new job.

However, the person resigning must be able to correctly draw up a statement so as not to lose what is due under the law.

How to correctly write a letter of resignation due to staff reduction in 2019?

The procedure for terminating an employment contract and settlement directly depend on the correctness of the document. The legislation does not provide for an established sample application for dismissal due to reduction, so the petition is drawn up in free form.

The general structure is:

• Document header. Located in the upper right corner of the sheet. Contains the name of the legal entity and full name of the manager, as well as information about the employee (full name, position).
• Main text. In the center of the page the title of the document “APPLICATION” is written (it is recommended to be in capital letters and in bold). The request is clearly stated underneath.
• The final part. The desired date of termination of the contract is indicated and a signature is placed with a transcript. The date the document was drawn up is written below.

What to consider when writing text:

• the employee must give his consent to premature termination of the contract. This gives the employer the right to formalize; otherwise, the reduction procedure cannot be implemented;
• a clear formulation of the request and the reason for dismissal: due to staff reduction, and not of one’s own free will; payments in these cases are calculated according to different articles (77 or 81 of the Labor Code of the Russian Federation);
• The presence of ambiguous phrases that distort the meaning is not allowed.

The text should contain the following points:

• information that the employee has received notice of the upcoming layoff;
• date of receipt of the written warning;
• list of proposed vacancies (if any);
• desire to terminate the contract before the reduction occurs;
• information that the employee expects to receive payments in connection with the reduction.

To write a letter of resignation due to reduction, use an ordinary A4 sheet. Fill out in printed form or by hand in legible handwriting.

Errors are unacceptable.

Document drafting examples

Example 1:

Arctur LLC plans to reduce the number of employees on December 14, 2016, and therefore, on December 10, 2019, corresponding written notifications were sent to employees. N.I. Korshunova, who holds the position of accountant in the economics and forecasting department, is going to terminate the contract prematurely (she has found a new job).

A sample letter of resignation due to reduction will look like this:

Example 2:

CJSC Globus plans to reduce the number of employees on April 26, 2017. Staff received written warnings on 2/26. 2019 Sales Representative G.V. Solovyova wants to leave the company early because she has found a new job.

The submitted application will look like this:

What benefits are provided?

Based on the application for early dismissal, an Order is issued and a corresponding entry is made in the work book. Subsequently, all payments required by law are made.

The employee is assigned:

• salary for days worked in the month in which the employment contract is terminated;
• payments equal to the average daily earnings for the days remaining before the expiration of the warning period;
• severance pay;
• salary for the two months following .

What to do if you are forced to provide a document?

It is economically beneficial for an enterprise when an employee resigns on his own.

It turns out that the termination of the employment relationship occurs at the initiative of the employee, which means that the compensation due for the reduction may not be paid.

For this reason, managers ask to submit an application for resignation of their own free will or. Some apply psychological pressure (threats).

What to do in such a situation? It depends on various factors.

If an employee has firmly decided to defend his rights, then he definitely cannot succumb to such persuasion.

• Record the fact of the offense - find witnesses who can confirm the employer’s threats or record the conversation on a voice recorder.
• File a complaint with the labor inspectorate or consult a good lawyer.

When considering a claim, the court examines the reasons for writing the statement, the conditions for drawing up the document, and the true intention of the employee.

Particular attention is paid to the text for the presence of the necessary details (signatures, dates, resolution, etc.).

If an employee wrote a statement under pressure from management and has irrefutable evidence, the employer is obligated to:

• pay all due benefits;
• change the wording of the reason for dismissal;
• compensate for moral damages and legal costs.

What do you need to know?

When terminating an employment contract due to staff reduction, the employer is obliged to follow a certain procedure.

Having discovered a violation, the labor inspectorate may invalidate the dismissal, so it is also useful for the employee to know the sequence of actions taken:

• Issuance of an order - contains an order to carry out the reduction procedure: reduce the number of employees, change the staffing table, etc.
  Drawing up a list of positions subject to reduction (based on Article 179 of the Labor Code of the Russian Federation).
• Sending notifications to employees for review against signature.
• Offer of alternative vacant positions.

The employee being dismissed must be notified well in advance of his layoff. This period can be reduced with his consent. To do this, the employee must sign a statement of early dismissal due to reduction (we provide a sample).

Reduction

The reduction entails a change in staffing. If the number of employees filling the same positions decreases, we are talking about a reduction in the number of employees. If positions or entire departments are excluded from the staffing table, a reduction in staff is required. In any case, the employer must comply with a number of mandatory measures provided for by the Labor Code.

Notifying employees and offering them available vacancies

All employees subject to layoffs must be notified in advance. Employees must be notified against signature and in person at least two months before dismissal (Part 2 of Article 180 of the Labor Code of the Russian Federation).

For seasonal workers, the notice period is much shorter. It is seven calendar days. And employees with whom an employment contract has been concluded for a period of less than two months must be notified at least three calendar days in advance.

Such a notice is drawn up in free form.

The employee will need to sign this document, which indicates familiarization with the text. If he refuses to sign, then the text of the document should be read aloud to him in front of witnesses. Next, the fact of notification and refusal to sign must be recorded in the act.

Before agreeing with an employee to reduce the notice period, he needs to be offered available vacancies. Since the employer has the right to dismiss due to reduction only after the employee refuses his existing job in the company. The proposal for transfer can be made either in the text of the notification or in a separate document.

Early dismissal

In the text of the layoff notice, you can immediately make an offer for early dismissal. Or issue it as a separate document.

Example sentence text:

"Dear _____! The employment contract may be terminated with you before the expiration of the notice period. In this case, the company undertakes to pay you compensation in the amount of average earnings, calculated in proportion to the period of time remaining before the expiration of the notice of dismissal. If you agree to early dismissal, you must contact the HR department with a statement.”

If employees do not want to be transferred to other vacancies and agree to resign earlier, it is necessary to obtain their consent to shorten the term. Such consent is drawn up in any form with the obligatory signature of the employee.

Sample application for early dismissal

Notification of government agencies

Government agencies must also be notified of the reduction:

• elected body of the primary trade union organization;
• employment center

Payments

If the notice period is shortened, the employer is obliged to pay additional compensation. Its size is the employee’s average earnings and is calculated in proportion to the period remaining until the end of the notice period for the upcoming layoff.

Registration

The basis for dismissal if an agreement is reached with the employee to reduce the period will be the same - dismissal due to reduction.