The procedure for dismissal in connection with the liquidation of an organization

General rules for dismissal during liquidation of an organization

If the organization is liquidated, then all employees are subject to dismissal - both those who are currently performing their labor functions, and those who are on vacation or sick.
In addition, upon dismissal due to the liquidation of an organization, even employees with young children and women on maternity leave and child care cannot be kept at work. When dismissing an employee for this reason, the company must notify within the established time frame:

employee of the organization;
trade union;
employment service.

It is imperative to accrue and pay the required compensation to the employee, draw up and personally hand over the work book and income certificate. As soon as the liquidation procedure is completed, all personnel documents must be archived. Next, we will consider the main stages of this procedure.

The procedure for dismissing an employee during liquidation of an organization is described in more detail in the Ready-made solution of the ConsultantPlus system. Get a trial access to the system and follow the instructions for free.

Who makes the decision on liquidation?

The basis for dismissal of employees in connection with the liquidation of an organization (“closing” of an individual entrepreneur) is the decision to liquidate the legal entity (termination of the activities of the individual entrepreneur).

The decision to liquidate an organization can be made:

founders (participants, shareholders) of a legal entity or its body authorized to do so by the constituent document (clause 2 of Article of the Civil Code);
by the court, including if the company is declared bankrupt (clauses 3 and 6 of Articles of the Civil Code of the Russian Federation).

The procedure for dismissing employees due to the liquidation of an organization is the same in all of the above cases.

IMPORTANT

An organization is considered liquidated after its exclusion from the Unified State Register of Legal Entities. However, the dismissal of employees is not related to the date of entry into this register. Termination of contracts is possible after a decision on liquidation has been made by the founders (authorized body) or the court (i.e., before the legal entity is removed from the register).

Submit documents for registering an LLC/IP or making changes to the Unified State Register of Legal Entities/Unified State Register of Individual Entrepreneurs via the Internet

REFERENCE

In some cases, tax authorities can independently (i.e., without an application from an organization or individual entrepreneur and without a court decision) exclude an inactive taxpayer from the Unified State Register of Legal Entities or Unified State Register of Individual Entrepreneurs.
For more details, see “Starting September 2021, tax authorities will be able to “close” inactive individual entrepreneurs.” In our opinion, in such situations, employment contracts with employees must also be terminated on the basis of clause 1 of part 1 of article of the Labor Code of the Russian Federation (i.e. in connection with the liquidation of the organization or the “closure” of the individual entrepreneur). This, in particular, follows from paragraph 2 of Article 64.2 of the Civil Code of the Russian Federation. It states that the exclusion of an inactive company from the Unified State Register of Legal Entities entails legal consequences provided for by laws in relation to liquidated legal entities. Receive a fresh extract from the Unified State Register of Legal Entities or Unified State Register of Individual Entrepreneurs with the signature of the Federal Tax Service Send an application

Dismissal upon liquidation of an organization: we notify the trade union committee

The primary trade union organization should be notified of future dismissal. This must be done 3 months remaining until the termination of the employment relationship (clause 2 of article 12 of the Federal Law “On trade unions, their rights and guarantees of activity” dated January 12, 1996 No. 10-FZ).

It is allowed to compose a notification in any form. The document should contain a list of employees subject to dismissal, as well as indicate the number of the liquidation decision and the date of the protocol.

Often, to sign a collective agreement, workers create a labor council. This association is not a trade union organization, and the law does not oblige it to notify.

Are you liquidating a legal entity? Sign up for a free trial access to ConsultantPlus and read the step-by-step instructions for liquidating an LLC with samples of the necessary documents.

Decision-making

The decision on liquidation is made by the owners - founders, shareholders of the company. If there are several of them, a general meeting . If we are talking about an LLC, then all owners must vote to close the business, which should be reflected in the minutes. If there is only one founder, he makes the sole decision and draws it up in paper form.

A liquidation commission is also being formed , which will deal with closure issues, including dismissal. Its work will last until the termination of the company’s existence is recorded in the Unified State Register of Legal Entities.

Dismissal due to liquidation of the organization: notify the employment service

The employment service must also be notified that layoffs are coming. At the same time, depending on the scale (massiveness) of termination of agreements, deadlines are established within which a message must be sent to the service, and the procedure for such notification. As stated in Decree of the Government of the Russian Federation dated 02/05/1993 No. 99, mass dismissal should be considered the simultaneous termination of employment agreements with 15 or more employees.

If there is a mass dismissal due to the liquidation of an organization, then the employment service must be notified twice:

3 months remaining before the start of the dismissal procedure, send Information on the mass release of workers in the form given in Appendix 1 to Resolution No. 99.
2 months remaining before the start of the dismissal procedure, submit Information about the dismissed employees in the form given in Appendix 2 to Resolution No. 99. They provide the personal data of each employee, his average earnings, education, profession and qualifications.

The above criteria for mass participation are not dogma. Regional authorities are given the right to determine their own limits for this indicator. However, this must satisfy the main principle: the social security of employees must not be violated (Article 2 of the Regulations under Resolution No. 99).

When there is no widespread dismissal, the employment service can be notified once - up to two months before the start of the dismissal procedure (Clause 2 of Article 25 of the Law of the Russian Federation “On Employment of the Population in the Russian Federation” dated April 19, 1991 No. 1032-1).

There is no official form for such notifications. You are allowed to compose a document in any form. It should mention the employee’s personal data, profession, personal working conditions, specialty, etc. From business practice it follows that personnel officers use the form given in Appendix 2 in such cases.

Notifications must be submitted to the employment service on paper - in person or by mail.

Warning to employees about dismissal due to liquidation of the enterprise

In the event of dismissal due to the liquidation of an organization, strict deadlines have been established within which the employer must meet in order to warn employees of the upcoming termination of their employment relationship. This time period should not exceed two months. This is done on an individual basis and necessarily against the personal signature of the employee (Part 2 of Article 180 of the Labor Code of the Russian Federation).

A sample notification of an employee about the upcoming dismissal due to the liquidation of the organization was prepared by ConsultantPlus experts. Get free trial access to the system and proceed to the sample.

In addition, it is necessary to notify in writing by mailing those employees who are currently on vacation (labor, pregnancy, etc.) or sick.

NOTE! If difficulties arise with the employee’s approval of the order (absent, does not want to get acquainted, etc.), the personnel service can send him a letter by mail. The shipment is sent by registered mail with acknowledgment of receipt. Two months will be counted from the day on which the employee signed the receipt of receipt of the letter.

The employer has the opportunity to terminate the employment relationship before the expiration of these two months. But this will require the written consent of the dismissed employee. In addition, in these circumstances, the employee will have to be paid compensation. It is calculated from average monthly earnings and is directly proportional to the time remaining before dismissal (Part 3 of Article 180 of the Labor Code of the Russian Federation).

To notify seasonal workers, other temporary standards are provided: the employer is given 7 calendar days (Article 296 of the Labor Code of the Russian Federation). If we are talking about persons with whom the employment relationship is valid for 2 months or less, then only 3 calendar days are given to notify them (Article 292 of the Labor Code of the Russian Federation).

Salary and compensation

The employee must receive payment for all time worked. Compensation during the liquidation of an enterprise for unpaid leave is paid to all employees, including those who did not have time to take advantage of this right, and not only to those who worked for more than six months, as follows from Art. 127 Labor Code of the Russian Federation.

The law provides that the employer, with the written consent of the employee, can terminate the employment contract before the expiration of the established 2 months. In this case, according to Art. 180 of the Labor Code of the Russian Federation, he will be entitled to additional compensation in the amount of average earnings, calculated in proportion to the remaining period of employment according to the law, that is, from the agreed date of dismissal until the expiration of the two-month warning period.

Preparation of documents for employees dismissed due to liquidation of the organization

Termination of contractual relations in the labor sphere must be accompanied by an order. When dismissing one employee, to correctly draw up an order, you should rely on form T-8; if we are talking about a group of employees, use form T-8a. Such templates were approved by the Decree of the State Statistics Committee of the Russian Federation “On approval of unified forms of primary accounting documentation for recording labor and its payment” dated January 5, 2004 No. 1.

For information on the procedure for filling out these forms, see the article “Unified Form No. T-8 - form and sample of completion.”

An enterprise can also develop its own documents for maintaining personnel records (letter of Rostrud dated 01/09/2013 No. 2-TZ).

The order should indicate the reason for termination of the employment relationship. In this case, it means that the organization is being liquidated. This area is regulated by the norm indicated in clause 1, part 1, art. 81 Labor Code of the Russian Federation. The order, in addition, must necessarily contain a reference to the number and date of the decision to terminate the company’s activities.

On the day of dismissal, the employee must be handed over the work book (Part 4 of Article 84.1 of the Labor Code of the Russian Federation). Before this, the personnel service must properly prepare a record containing a link to the above-mentioned clause 1, part 1, art. 81 Labor Code of the Russian Federation.

ATTENTION! The rules for maintaining work books in force from 09/01/2021 (approved by order of the Ministry of Labor dated 05/19/2021 No. 320n) do not provide for familiarization of the employee with the signature of the work records entered into the paper work book (previously, employees signed the dismissal record). Read more about the new rules for registering a work book, effective from September 2021, here.

In addition to the work book, the company must issue the employee a certificate of the amount of payments for which insurance premiums were calculated for the previous two years (subclause 3, clause 2, article 4.1 of the Federal Law “On compulsory social insurance in case of temporary disability and in connection with maternity” dated December 29, 2006 No. 255-FZ). The form of the certificate is approved in Appendix 1 to the order of the Ministry of Labor of Russia dated April 30, 2013 No. 182n.

In addition, at the employee’s request, issue him a 2-NDFL certificate.

Paperwork

The final stage is the issuance of an order, registration of entries in personnel work books and their issuance to employees, as well as carrying out financial settlements with employees. No additional statements are required from people working at the enterprise.

According to the law, the order is issued two (in special cases - three) months after the notifications are served on the staff. It is not allowed to fire people before this period - this would be a direct violation of Russian labor legislation. The document form is standard. A sample dismissal order during liquidation of an enterprise contains the following information:

Full name of the organization.
Document Number.
Date of completion.
Title of the document (order).
Information about termination of the employment contract: agreement number, expiration date.
Information about the employee: Full name, personnel number (if any), name of the structural unit where the person worked, his position.
Grounds for termination of the contract - here there should be a reference to Article 81 of the Labor Code of the Russian Federation (clause 1 of part 1).
Signature of the head of the enterprise.
Employee signature.
Date of.

After the employee reads the order and puts his signature on it, the HR department employee makes the required entry in the work book, the manager signs it, and then the document is given to the dismissed person.

Payments to persons dismissed due to liquidation of the organization

If the dismissal of an employee is due to the liquidation of the organization, upon termination of the contract he is entitled to pay severance pay. Its value is established by law and is equal to 1 average monthly salary (Part 1 of Article 178 of the Labor Code of the Russian Federation). Payment must be made on the day when the employment contract ceased to be valid.

If an employee looks for a new job for more than a month, then the employer is obliged to pay him the average monthly salary for the 2nd month from the date of dismissal or for part of it in proportion to the period of employment that falls on that month (Part 2 of Article 178 of the Labor Code of the Russian Federation). It is possible to extend it for another month or part of it in proportion to the period of employment (up to 3 months in total), but only if the dismissed employee is registered with the employment service within two weeks after termination of employment and has not found a decent place of work (Part 3 Article 178 of the Labor Code of the Russian Federation). In this case, the employer has the right to pay, instead of the specified transfers for the 2nd and 3rd months after employment, a one-time compensation in the amount of twice the average monthly earnings (Part 4 of Article 178 of the Labor Code of the Russian Federation).

For accruals for the 3rd month, if it is made according to the general rule, a decision of the employment service is therefore required. But all payments fall on the shoulders of the liquidated company, so the procedure for calculating payments will only make sense until the moment of liquidation.

For information on the procedure for calculating personal income tax on compensation payments, see the article “Severance pay, payments upon dismissal and personal income tax.”

For information on how to calculate the average salary, see the article “How to calculate the average monthly salary (formula).”

Notification of the military registration and enlistment office

No later than two weeks from the date of dismissal of employees subject to military registration, it is necessary to notify the military registration and enlistment office about this. To do this, you need to use the form from Appendix No. 9 to the Methodological Recommendations of the General Staff of the RF Armed Forces on maintaining military records in organizations. The form can be obtained directly from the military registration and enlistment office.

Another point worth considering is that the organization may have employees who are subject to executive documents. For example, for the payment of alimony. After the dismissal of such an employee, you must immediately notify the unit of the Bailiff Service and return the writ of execution to them. If the employer fails to do this, he may be fined.

We hand over documents for employees dismissed due to the liquidation of the organization to the archives

Documents related to both personnel and wages must be stored in the organization’s archives for a strictly established period of time.

HR documents include those that contain information about hiring, dismissal, transfers, salaries, bonuses, and certification of employees.

After the organization is liquidated and removed from the register, the specified personnel records must be transferred to the archive (municipal or state). To do this, the liquidation commission or liquidator on behalf of the company that is terminating its activities must draw up an agreement with such an archive (Clause 10, Article 23 of the Federal Law “On Archiving in the Russian Federation” dated October 22, 2004 No. 125-FZ).

Results

When dismissing, you must comply with the time frame and procedure for informing employees and relevant departments about this fact.
Otherwise, the company may be fined for violating labor laws (Article 5.27 of the Code of Administrative Offenses of the Russian Federation). Penalties are provided in the range from 35,000 to 50,000 rubles. for companies and from 1,000 to 5,000 rubles. for officials. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.