Answer
The answers to your questions depend on the position the employee occupies, his desire to continue working under the new owner of the organization, and the details of the specific situation.
The new owner, no later than three months from the date of his ownership rights, has the right to terminate the employment contract with the head of the organization, his deputies and the chief accountant.
A change in the owner of the organization’s property is not grounds for terminating employment contracts with other employees of the organization.
If the employee refuses to continue working for the new owner of the organization, the employment contract is terminated in accordance with paragraph 6 of Article 77 of this Code.
If the reorganization is accompanied by a reduction in headcount or staff, then you can fire employees under clause 2, part 1, art. 81 Labor Code of the Russian Federation
Employees do not need to be fired and hired into a new organization, including through transfer. Concluding a new employment contract with an employee (to replace the terminated one) will be contrary to current legislation.
In a situation where employees do not refuse to continue working for the new owner of the organization, it is necessary to include information about the employer (including its name) in employment contracts with employees (since information about the employer is mandatory). This can be done by concluding additional agreements to employment contracts.
Possible difficulties
Sometimes reorganization is accompanied by serious personnel changes. For example, a new enterprise may significantly reduce the number of workers, which will force the current workforce to be reduced. In this case, the dismissal procedure must be carried out not due to reorganization, but due to downsizing at the enterprise.
Such dismissal requires not only paying compensation and maintaining the employee’s average salary while looking for a new job, but also notifying him in a timely manner. Moreover, there are categories of workers who cannot be fired even in the event of a reduction. There is also a list of those who have a priority right to retain a position due to special circumstances. The employer must take all this into account when making a decision to dismiss.
Rationale
According to Art. 75 Labor Code of the Russian Federation:
“When the owner of an organization’s property changes, the new owner, no later than three months from the date on which his ownership rights arise, has the right to terminate the employment contract with the head of the organization, his deputies and the chief accountant.
A change in the owner of the organization’s property is not grounds for terminating employment contracts with other employees of the organization.
If an employee refuses to continue working in connection with a change in the owner of the organization’s property, the employment contract is terminated in accordance with paragraph 6 of Article 77 of this Code.
When the owner of an organization's property changes, a reduction in the number or staff of employees is allowed only after state registration of the transfer of ownership.
A change in the jurisdiction (subordination) of an organization or its reorganization (merger, accession, division, separation, transformation) or a change in the type of state or municipal institution cannot be grounds for terminating employment contracts with employees of the organization or institution.
If the employee refuses to continue working in the cases provided for in part five of this article, the employment contract is terminated in accordance with paragraph 6 of Article 77 of this Code.”
Thus:
The answers to your questions depend on the position the employee occupies, his desire to continue working under the new owner of the organization, and the details of the specific situation.
Employees do not need to be fired and hired into a new organization, including through transfer. Concluding a new employment contract with an employee (to replace the terminated one) will be contrary to current legislation.
If, in connection with a change in the owner of the organization’s property, there is a change in the terms of the employment contract (for example, conditions on working hours and rest periods), the employer will need to take into account the requirements of Art. 74 of the Labor Code of the Russian Federation, in particular, notify employees of such changes in accordance with Part 2 of Art. 74 Labor Code of the Russian Federation.
If information about the employer (including its name) has changed during the reorganization, this must be reflected, in particular, in employment contracts with employees, since information about the employer is mandatory, as follows from paragraph. 1 - 4 hours 1 tbsp. 57 Labor Code of the Russian Federation. This can be done, for example, by concluding additional agreements to employment contracts.
Additional useful material from SPS ConsultantPlus:
Ready-made solution: How to fire employees during the reorganization of an organization (ConsultantPlus, 2021)
Types of reorganization
In order to always be profitable, any business undergoes certain changes from time to time. For example, an entrepreneur may decide to change the legal form of his company, join another enterprise to increase the effect of scale of production. In all these cases we are talking about reorganization. Moreover, during the ongoing activities, the question of dismissal of employees may arise. Before terminating the contract, you should understand the possible types of reorganization. Depending on the nature of the change in the organizational form, the following are distinguished:
- In the form of accession . Assumes that the old organization ceases to exist, becoming part of another. It must be accompanied by making an entry in Rosreestr about the termination of the enterprise’s activities.
- In transformation form . Does not imply the closure of the company. It simply changes its organizational and legal form. It turns out that a new enterprise is being formed on the basis of the old one.
- In the form of a merger . It consists of merging several enterprises, but none of them are preserved in their old quality - all the old companies are closed, and then a completely new one is opened.
- In the form of selection . The old company remains, but a certain part of it is separated into a separate legal entity. This often happens when production volumes increase and activities are divided. For example, if a plant had several workshops engaged in different activities (steel melting, wood production), one of the areas could be separated into an independent enterprise.
In all these cases, dismissal may be necessary. But such actions are not always legal. We have to look for a compromise solution together with the employee.
Special situations
According to the law, certain categories of workers cannot be dismissed due to layoffs against the backdrop of reorganization. Otherwise, the violator will incur administrative liability, which includes a large fine and temporary suspension of the enterprise. It is prohibited to deprive of work:
- Women at any stage of pregnancy;
- Employees on regular, additional leave or sick leave;
- Mothers raising children on their own;
- Women on maternity leave;
- Persons who are guardians of minors;
- Employees whose family has disabled children;
- Employees with large families
- Combatants and retirees.
You cannot terminate a contract with employees who belong to one of the categories on your own initiative. Dismissal is allowed only if the employee himself wants to stop working at the enterprise after the reorganization.
Merger of an enterprise
When carrying out this form of company reorganization, the dismissal of personnel is not mandatory, since employees can get jobs in the newly formed company. But still, some conditions for carrying out production activities may change, for example:
- location of the enterprise;
- payroll methods;
- methods for calculating and paying bonuses;
- work schedule.
If an employee is not satisfied with the new working conditions, he must submit a resignation letter to his manager.
But the reason for ending the relationship in the document should indicate the specialist’s personal reluctance to continue working in connection with the reorganization of the company.
What are the consequences of violating the staff reduction procedure?
If his labor rights are violated, a dismissed employee can file a complaint with the State Labor Inspectorate and even the prosecutor's office. At the same time, he can demand protection and compensation either immediately after dismissal or much later. If the fact of violations is confirmed, the employer faces a fine, suspension of the enterprise for 90 days, and most importantly, the need to pay monetary compensation to the offended employee.
To avoid mistakes when organizing such an important process, use the help of professionals - contact. We have been successfully working in this market for more than 3 years and help our clients efficiently and quickly resolve any issues related to compliance with labor law at all stages of business operation.
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Category of employees who cannot be fired
Whatever the circumstances at the company, the law of the Russian Federation provides for a list of employees who cannot be fired or made redundant. The list of such persons is enshrined in Article 261 of the Labor Code.
This includes workers who:
- are on vacation;
- are in the status of temporary disability;
- pregnant women;
- women on maternity leave;
- women who are raising children under 3 years of age (or up to 6 years of age if a medical professional has confirmed that the child needs home care);
- single mothers or fathers raising a child under 14 years of age;
- parent of a disabled child under 18 years of age;
- trade union members;
- under 18 years of age - they cannot be dismissed without the consent of the local commission on minors.
Compensation payments
A mandatory part of dismissing an employee is making a final payment. Thus, the employer must pay employees:
- Salary for time worked.
- Compensation for unused vacation.
- Bonuses and payments provided for in the employment contract and local regulations.
- Severance pay calculated on the basis of average monthly earnings for the last year. This amount is paid within two months after dismissal.
If an employee resigns before the start of the reorganization, the employer is obliged to provide him with additional severance pay. In addition, if the employee was not employed within two months after the termination of the relationship, then the employer must pay him for the third month. But to receive this payment, a citizen must register with the local Employment Service.
Dismissal procedure
Labor legislation provides for a general procedure for terminating contracts. However, in the case of reorganization, this procedure has its own characteristics. Dismissal occurs in several successive stages.
Employee notification
It should be noted that management issues notifications, but not about the termination of contracts, but about the upcoming reorganization. The document is drawn up in two copies. The former retains management while the latter is transferred to the employee. The notification form is free, since no unified template has been developed.
Attention! Notification must be given no less than 2 months before the upcoming procedure. The liquidation of an enterprise can take place in a shorter period of time, however, the management’s responsibilities to employees remain.
Each employee must read the written notice carefully. To ensure that he has carefully studied the contents of the document, it is recommended to use an acquaintance certificate.
Issuance of an order
When layoffs are made in connection with the reorganization of the enterprise, management issues an order. The document is registered and subsequently entered into the archive. All employees must be familiarized with the contents of the order individually, after which they sign the corresponding act. If necessary, each employee is provided with a copy of the order.
Calculation
The final stage of reduction is the calculation of required payments. The employee is required to transfer wages, as well as other material compensation guaranteed by law. The calculation is made directly on the day of dismissal, that is, when the employee ceases to perform his functions. At the same time, marks are made in the work book, after which it is returned to the owner.
