Legislative sections that regulate the labor rights of workers
The key right of a citizen of the Russian Federation, approved by its current legislation (this includes the Constitution of the state), is his inalienable right to work.
Its compliance is carefully monitored by the state. At the same time, the main document that determines the procedure for exercising this right, options for its protection and other aspects of the civil rights of an employee is the Labor Code of the Russian Federation. In addition to all this, in order to ensure compliance with the citizen’s right to work, our state appoints various specialized government bodies. An employee has the opportunity to file an appeal to these authorities in the event that his rights and legitimate interests in carrying out work activities are violated. This option is also possible in a situation if an employee needs to obtain any information regarding the current legislation that governs these labor relations.
Finally, in our state there is Federal Law No. 10-FZ of January 12, 1996 “On trade unions, their rights and guarantees of activity,” which grants employees the right to unite in non-profit organizations to independently defend their own rights and legal interests (in case they were suddenly violated).
Thus, the various tools and methods that can be used by an employee (whose rights were violated) have a fairly extensive list. In addition, it is worth remembering that the current legislation quite clearly regulates most procedures that, one way or another, affect the implementation of labor rights.
Therefore, most often, to ensure their compliance, the director of the company must only carefully familiarize himself with the current legislation and accurately apply its provisions when carrying out any actions in the field of labor rights.
Procedure for filing a bankruptcy petition
In the vast majority of cases, legal entities resort to the help of professional lawyers, but it is necessary to know the main aspects of the process. An application to the court can be filed if:
- The organization's debt exceeds 300 thousand rubles (including penalties, fines and other charges).
- No payments have been made on the loan for 90 days or more.
Along with the application, you must submit several supporting documents (certificate confirming the debt; certificate of registration of a legal entity, etc.). It would be wiser to delegate this task to those who help in formalizing the process, since collecting all the certificates will take a lot of time. The application is submitted to the arbitration court at the place of registration of the legal entity.
Bankruptcy and liquidation of a legal entity are different concepts. If the process of recognizing the financial insolvency of a company has begun, this does not mean that it will necessarily cease its activities. There is a possibility that the company will restore solvency and pay off its existing debt.
The nuances by which an employment contract with an employee is terminated in the event of company bankruptcy.
For example, strict compliance with the labor rights of employees also applies to the procedure for dismissing employees. Based on the provisions of the currently valid Labor Code of the Russian Federation, there are various key grounds according to which dismissal can occur. Such a basis may be the insolvency of a commercial company in terms of its own obligations, which, in turn, leads to the initiation of bankruptcy proceedings against it.
Based on the provisions of Article 65 of the Civil Code of the Russian Federation, the bankruptcy of a legal entity, the cause of which is its inability to fulfill its obligations, is the basis for the liquidation of such a commercial organization. In turn, the liquidation of a company may be the basis for termination of the employment contract of such a company (if it is an employer) with its own employees (based on the provisions of paragraph one of Article 81 of the Labor Code of the Russian Federation).
If bankruptcy proceedings have been initiated against such an enterprise, those responsible for personnel management issues, for example, the director, must carefully follow the legal procedure regarding the dismissal of company employees (based on the provisions of the current legislation).
If any stage of this procedure is skipped or performed inappropriately, the dismissed employees of the company have the right to appeal to the judicial authorities and file a statement of claim to challenge the dismissal procedure. In such a situation, there is a very high probability that the judicial authority will make a decision in their favor, and the costs of the company, which is already in a difficult financial situation, will also include the costs of paying compensation to illegally dismissed employees.
How are workers notified of upcoming dismissal?
So, based on the provisions of established practice, most often, when an enterprise is declared bankrupt, the procedure for its liquidation then begins.
The liquidation of such a company, in other words, means that it no longer requires its own employees, and they must be legally dismissed - that is, their existing employment contracts must be terminated.
Most often, the bankruptcy procedure of a company leads to the introduction of bankruptcy proceedings against it. When bankruptcy proceedings are carried out, all its affairs are managed by an external specialist. He is obliged to conduct affairs related to personnel management in this company.
Thus, based on the provisions of the second paragraph of Article 129 of Federal Law No. 127-FZ of October 26, 2002 “On Insolvency (Bankruptcy)”, no later than within a month after bankruptcy proceedings have been introduced against the company proceedings, the bankruptcy trustees must send a notice to employees about the termination of their employment contracts.
The period during which employees are guaranteed the safety of their own workplace and the corresponding salary for the position held is regulated by Article 180 of the Labor Code of the Russian Federation.
Thus, in this section of this regulatory legal act the following is established: if an employment contract with employees of a bankrupt company is carried out due to its liquidation, employees must be notified of the imminent dismissal no later than 2 months before the date on which it is planned to take place.
In addition, it is worth remembering that, according to the same Article 180 of the Labor Code of the Russian Federation, it is necessary to comply with the established form of informing employees about their upcoming dismissal due to the liquidation of a bankrupt company. For example, it talks about the mandatory recording of such an order in writing. In this case, the provision of the corresponding written document must be carried out to each employee personally.
In turn, after reading the contents of such a document, the employee of the bankrupt company must confirm that the information has been communicated to him. He must personally sign the relevant document.
In other words, the person who is the head of the enterprise and is responsible for issues related to personnel management, at the time of the liquidation procedure of the bankrupt company, must issue notices in sufficient quantity - that is, as many as there are employees in this company.
Filling procedure
A citizen will be able to receive a completed work book on the last day of work. An enterprise order is used to fill out the document. The sample design must include the following mandatory items:
- date and number of the administrative act;
- link to clause 1, part 1, art. 81 of the Labor Code of the Russian Federation, which provides for dismissal upon liquidation;
- signature of the official authorized to maintain the book, seal of the enterprise.
Sample entry in the work book about dismissal during liquidation
When filling out, the accuracy of the records for the entire period of work at the enterprise is checked. To do this, the citizen must be familiar with the contents of the document upon signature. If errors or inaccuracies are identified, the incorrect entry is canceled and the appropriate information is entered. If you refuse to familiarize yourself or refuse a personal signature, a commission act is drawn up.
The original work book is issued in person with a corresponding note in the personnel service journals. If on the last day of work the citizen was absent from the enterprise, the document is sent by mail as a valuable item.
Violation of the deadlines for issuing a work book is not considered by judicial practice as a basis for reinstatement at work. However, for the entire period of the violation, the employer or the founders of the company will be required to pay damages if the citizen was unable to get a job. In addition, compensation for moral damage will be recovered according to the judicial act.
Upon dismissal, a citizen can request from the employer additional documents related to work at the enterprise. This list includes a copy of the order and an extract from the work book. The extract must be certified by the signature of an official and the seal of the enterprise, and the administration must complete all documents no later than 3 days after receiving the application.
Read on the topic: The procedure for dismissing a director in the event of bankruptcy of an organization
In what time period must an employment contract be terminated?
In addition to all of the above, it is worth remembering that regarding the time period during which it is possible to terminate employment contracts with employees of a bankrupt organization, the current legislation establishes special requirements. They are determined by the very essence of the procedure for initiating bankruptcy in relation to a commercial organization and its subsequent liquidation on this basis.
The whole point is that initiating a bankruptcy procedure, in which a company, based on established practice, is subject to bankruptcy proceedings, does not yet mean the beginning of the liquidation procedure itself. Therefore, if this is the stage of bankruptcy and external management, the dismissal of employees of a bankrupt organization is considered illegal.
Such termination of an employment contract, based on the requirements of current legislation, is carried out by the person in charge of personnel management at the enterprise only after the liquidation procedure has begun.
It, in turn, is recognized as having begun after sending a corresponding notification to the state registration authority. This notification should inform this department that the commercial organization is at the stage of completing its activities. In this situation, it will be possible to terminate the employment contract with the company’s employees on the basis of the first paragraph of Article 81 of the Labor Code of the Russian Federation.
Otherwise, if the employment contract with an employee of a bankrupt company was terminated at the stage of bankruptcy proceedings, he has the right to challenge such an action by filing a corresponding statement of claim in court.
What types of compensation payments are due to employees upon dismissal?
At the same time, the person who is involved in carrying out all the necessary procedures related to the dismissal of employees of a bankrupt company on the basis of its liquidation must take care that the employees receive all the monetary payments that are due to them in this situation, based on the provisions of the current legislation.
Thus, the ordinary payment provided for in Article 178 of the Labor Code of the Russian Federation assumes that if an employee is dismissed due to the liquidation of the company, he is entitled to receive severance pay, the amount of which is one average monthly salary. In addition to all this, he also has the right to receive funds while looking for a new job in the amount of the average monthly salary for two months.
In this case, the employee must receive the specified funds at a time, on the day when the employment contract with him was terminated. It is worth keeping in mind that the main requirements for the provision of payments concern employees who were unable to find work within two months from the date of dismissal (although not only them).
If such an employee was registered with the employment service two weeks after the employment contract between him and the bankrupt company was terminated, and at the same time he was not employed within two months from the date of registration, the employee the right to payment of an additional amount of money in the amount of the average monthly salary appears.
Thus, in general, when a company is liquidated, depending on the specific conditions, the payment of funds to dismissed employees can be equal to three to four times the average monthly salary. These funds should help employees with financial support during a difficult period while they are looking for a new job.
The procedure for dismissal in case of bankruptcy of an enterprise or entrepreneur
In the event of bankruptcy of an organization or individual entrepreneur, the dismissal of employees is carried out according to paragraph 1 of part 1 of Article 81 of the Labor Code of the Russian Federation.
The employer must follow the following procedure:
- Warn employees two months before dismissal.
- Prepare a dismissal order and familiarize employees with it against signature.
- Issue a work book and pay off employees.
Let's look at each stage in more detail.
Step 1 – Notifying employees of dismissal
Before dismissing employees, the employer is required to notify them two months before the date of termination of employment. The notice is prepared in writing and issued to each employee against signature or sent by registered mail with notification.
If the employee has expressed written consent to early dismissal, the employment relationship may be terminated before the expiration of two months.
We must remember! Upon dismissal due to liquidation, the employer is not obliged to preserve the jobs of pregnant women, mothers on maternity leave, or women raising a disabled child. The employment relationship with them is also terminated, since the employer does not intend to continue its activities.
Step 2 – Preparing a dismissal order and familiarizing employees
Orders to terminate labor relations with employees are prepared for the appointed date of dismissal. The basis is indicated in paragraph 1 of part 1 of Article 81 of the Labor Code of the Russian Federation.
The employer is obliged to familiarize all employees with the order against signature. A mark of familiarization is placed on the document itself, and a copy is given to the former employee.
