how to avoid this and what you are entitled to by law
introduction
Oh, this is dismissal without compensation. Some employers love it, and recently there have been many requests to the trade union with this problem.
The situation here is often like this: dismissing an employee against his wishes is not so easy under the law. To do this, you need to fulfill a number of difficult conditions. Often the employer cannot and does not really want to try, but is ready to scare the employee or take advantage of his ignorance.
This is why it happens. Large companies often have departments that deal with internal auditing or checking employees' suitability for their positions. This could be done by the corporate compliance department, the human resources department, the training and development department, or even the human resources department. They form more or less legal procedures and documents corresponding to them from the point of view of labor law.
Smaller companies often have a vague understanding of the processes and documents required to conduct internal audits and certifications. The management saves on everything, the conventional personnel officer is overwhelmed with turnover. Sometimes he is not very interested in “raising virgin soil” and establishing processes alone, and sometimes he simply has no time. But people have to be fired.
And this is where it begins. To the extent of their depravity, while some are trying to resolve this issue through negotiations, concessions and other methods within the framework of the law, others act as “effectively” as possible – through blackmail and threats. “We will fire you under the article with a record in the labor record and we will send information about you to all HR chats. You won't get a job anywhere else. We are filing a police report against you for disclosing trade secrets. We will outplay you and destroy you.”
In a good way, in this situation the company would have to take a strategic approach to such a process as hiring. That is, do not hire just anyone, but calculate your strength, set reasonable probationary periods and closely monitor employees during these periods. And not after a year and a half of work suddenly declare that your work is extremely bad, everyone around you is unhappy, the main client left because of you, and in general, get out quickly.
The temptation to fire an employee without compensation is especially great for companies that are already experiencing financial difficulties. Therefore, we remind you once again – choose your employer wisely.
But law-abiding and informed labor market participants are not a thing of tomorrow. Therefore, for now, let’s try to do the impossible and figure out what the law says. What payments exist, in which cases they are due and in which they are not. Employers often take advantage of the fact that employees do not know this. It is not necessary to learn the Labor Code of the Russian Federation by heart, it is enough to understand the general theory and know where to look if necessary.
It is worth noting that labor legislation is quite complex. Cases part-time job, fixed-term contracts, seasonal work; labor relations with so-called inferior personsthat is, with persons with disabilities, young people; with persons in special social and legal categories (for example, veterans). Non-obvious payment calculations. In this article we will study only the most common cases.
Work under a GPC agreement
An important point: all these wonderful words: “vacation”, “sick leave”, “payments” – are only available to those who are registered under employment contract. And here GPC agreements (civil law): contract agreements, copyright and license agreements, service agreements and the like – imply only payment for the work done.
Please note that with January 1, 2023 employees under GPC agreements are recognized as insured persons according to VNIM (insurance contributions to the Unified Social Fund for temporary disability and maternity). Organizations and individual entrepreneurs are required to pay this type of contribution. Not everyone has the right to such benefits; there are a number of conditions. GPC workers have no other payments, that is, compensation for unused vacation, severance pay, sick leave after dismissal. Keep this in mind if you are offered to enter into such an agreement.
Reasons for dismissal
There are many reasons for dismissal: dismissal during the probationary period, termination of a contract with a limited duration, dismissal for violation of labor duties or “under an article,” dismissal for a long absence or “for absenteeism.” Yes, the last two reasons are regulated by different articles of the Labor Code of the Russian Federation and even partially by different documents: the Labor Code of the Russian Federation and the Civil Code of the Russian Federation.
But in practice, employees mainly face three dismissal scenarios:
at your own request;
by agreement of the parties;
on staff reduction.
Moreover, the first two are simpler organizationally and least expensive for the employer, so most often companies try to persuade employees to one of them.
Sometimes they try to fire an employee “under the article,” but this is not so easy. You need to be a fairly organized and responsible company with order in its documents and processes. Moreover, you need to have good reasons. What grounds are needed and what the company faces for illegal dismissal? read here.
In theory, you can still be fired based on the results of the certification. But you should not think that any farce organized by the employer will be considered a correctly and legally conducted certification. Here you need to work hard, organize everything correctly and document it, so that if it comes down to it, the court will recognize the results of this process.
And if the company has order in its documents and processes, then such a situation, most likely, simply will not arise. And for reference: any dismissal is a dismissal under an article, since one or another article of the Labor Code of the Russian Federation applies. It’s just that usually when they say “according to the article,” they mean “bad article.”
Let's look at these dismissal scenarios in more detail.
At your own request
Voluntary dismissal occurs when an employee expresses a desire to terminate the employment relationship without a direct agreement with the employer. In this case, additional agreements on the conditions of dismissal, for example, the payment of several salaries, are not provided for by law.
Required payments:
Regulatory documents:
By agreement of the parties
Dismissal by agreement of the parties occurs when the parties agree to end the employment relationship. Such dismissal is de facto initiated by the employer, so he agrees with the employee on how their employment relationship will end and what the employee will receive for it. This is a form of protecting the employee from arbitrariness on the part of the hiring organization.
Usually an additional agreement to the employment contract is signed or a special dismissal document is drawn up. These documents may regulate additional issues, such as conditions for payment of compensation, terms of dismissal and other aspects.
Required payments:
balance of salary;
vacation compensation;
other payments agreed upon by the parties, for example, several salaries.
Regulatory documents:
Staff reduction
Dismissal due to staff reduction is one of the ways to terminate an employment contract, which occurs at the initiative of the employer when it is necessary to reduce the number of personnel or change the working conditions in the organization.
What is important to note here:
Employer initiative: the employer decides to reduce the number of personnel in the organization due to economic, technical, organizational or other circumstances.
Dismissal procedure: The employer must comply with the procedural requirements when dismissing due to redundancy. He must notify employees of the planned dismissal at least a month in advance, as well as provide compensation and benefits required by law.
This is a costly process. The employer must issue a decree on staff reduction and notify the employment service of the upcoming dismissal. A commission is appointed that must decide which of the employees subject to dismissal has a preferential right to remain. Time limits associated with this are established. Well, you feel it already, right? Then an order is issued to create a commission, and a list of employees subject to dismissal is drawn up. Here written in more detail. Of course, employers Very they do not like this process and will try in every possible way to avoid it. Because it's a colossal headache. It’s easier to intimidate with an article and force an employee to leave of his own free will.
Required payments:
balance of salary;
vacation compensation;
severance pay.
Regulatory documents (main ones, in general there are more of them):
Article 81. Conditions for termination of an employment contract at the initiative of the employer.
Types of severance payments
Now let's talk in more detail about each type of payment. There is also a whole mountain of nuances here, which are not always obvious, and sometimes even completely vague. In difficult cases, it would be a good idea to consult an accountant and/or a labor law lawyer.
Remaining salary
This is the main payment, and it is there in any dismissal scenario. The employer is obliged to pay the employee the full amount that he earned before the dismissal. This amount includes salaryand awards And surchargesprovided for in the employment contract. The company can determine the terms of these payments, but must pay them on the day of dismissal.
Regulatory documents:
collective agreement or agreement (if any);
internal documents of the organization.
Compensation for unused vacation
What is important to consider:
By law, all employees are entitled to at least 28 calendar days of vacation per year.
An employee has the right to take vacation after 6 months of work or earlier, in agreement with his superiors.
The employer pays for all unused vacation.
Compensation is due regardless of the reasons for dismissal, that is, always.
Regulatory documents:
Severance pay
This is a rather complex type of payment. Main regulatory documents here Article 178 of the Labor Code of the Russian Federation and collective agreement. It should be noted that Article 178 of the Labor Code of the Russian Federation very vaguely defines the reasons for staff reduction. This is partly why there has recently been a tendency to fix everything in a collective agreement, the length of which sometimes reaches several hundred pages. The most common practice is to pay two or three average monthly salaries.
When applying for a new job, try to find out if there is a collective agreement and familiarize yourself with at least the part that concerns dismissal due to staff reduction. Keep in mind here's a precedent, when the employer refused to provide a copy and sent the employee to the HR department. Difficulties may arise, including when working remotely. However in law at t[рудоустройстве работодатель обязан ознакомить работника, среди прочего, с коллективным договором, и препятствовать этому права не имеет.]
Let's highlight the main points:
Period (the number of months) for which the average salary is paid is defined in the law as follows: if you work in an organization for up to a month, the average salary for the first month is paid; if you work for more than a month, the average salary is paid for the second month; in exceptional cases, by court decision, the average monthly salary for the third month is paid. There are also a number of cases where the average salary for two weeks is paid.
Not always paid – only if the employee is fired for reasons beyond his control: liquidation of the company, staff reduction, conscription into the army. By the way, to be fair, if a company fires you because a client’s project fell through, these are also circumstances beyond the employee’s control. Formally, this is a staff reduction.
Algorithm for calculating average monthly earnings such:
We calculate the salary for 12 months.
We divide it by the number of days actually worked during the period.
We count the number of working days in the first month after dismissal (according to the employee’s schedule) and add the number of holidays.
Multiply the result from step 2 by the result from step 3.
Regulatory documents:
Sick leave after dismissal
Workers are often unaware of this type of payment.
The general provisions for receiving this compensation are:
The employee was registered as a full-time employee under an employment contract, and the employer paid VNiM contributions for him.
Sick leave was issued no later than 30 days from the date of dismissal.
The employee applied for payment no later than six months from the date of dismissal.
Within 30 days from the date of dismissal, the employee still has not found a new job.
If sick leave is issued BEFORE dismissal inclusive, 100% of the average salary is paid, if after – 60%.
There are also many nuances in this type of payment, and getting it can be difficult. However, it is not impossible. You can read more about how to prepare documents, what conditions must be met and how to file a complaint to the Ministry of Labor Here.
Regulatory documents:
How to avoid being fired without compensation. Step-by-step instruction
Choose your employer wisely: Upon employment research your future job. It is easier not to create many problems than to solve them later.
Know your rights: No need to memorize, just have a general idea and good reference material.
Be a responsible employee: do not be late, do not violate the work schedule, do not give reasons for dismissal “under article”.
Upon dismissal first calmly and politely ask for the payments required by law, justify the request with references to the law. For the employer, this will already be a signal that by pretending to be a hose and remaining silent, he will not get rid of you.
If the employer enters into a conflict: send to the company well-written statements and claims by registered mail with acknowledgment of receipt, translate the conflict into a legal plane. Many will abandon the conflict at this stage, because in court the situation will not develop in their favor.
If it doesn't help, file complaints with the Ministry of Labor, State Labor Inspectorate (State Labor Inspectorate), and the prosecutor's office. Be active and consistent, finish what you start.
If you have colleagues who are in the same situation, get organized and file complaints collectively.
If you are poorly versed in the intricacies of the law and feel that drawing up complaints and appeals is beyond your capabilities, seek qualified help. Pay for a legal consultation, contact the trade unionto those familiar with experience.
