In a difficult economic situation, sometimes staff reduction becomes the only possible way to save the enterprise. Often, however, downsizing is a way to save resources. This procedure is spelled out in great detail in the Labor Code and has a well-thought-out sequence.
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Reduction of employees under the Labor Code
Reduction of staff is a procedure that provides for compliance with a number of conditions by the Labor Code. Failure by the employer to fulfill one of them may result in the restoration of the employee at the workplace, with the payment of earnings for the entire period of forced absenteeism, which will be considered the period from the date of dismissal to the date of restoration. Labor disputes are often resolved in court and the court, as a rule, takes the side of the employee.
The rules for dismissal in accordance with the Labor Law should be known to both employers and employees.
Dismissal due to redundancy falls under Article 71 and must be carried out in two cases:
- With the liquidation of the post as a whole.
- With the reduction of staff units for this position.
In any enterprise, large or small, there are positions that are occupied by only one employee, for example, the head of the hot laying shop. If such a position is reduced, then the employee who occupies it is dismissed.
In large enterprises, there are positions that are occupied by several (sometimes several dozen) people, for example, a commuter bus driver. Here, not all positions can be reduced, but only the number of employees is limited, for example, “reduce the number of employees from 25 to 15”. Then only a part of the persons holding this position will be reduced, here a number of other provisions of the Labor Code will come into force.
The dismissal of workers is also carried out in the event of a reorganization of production. For example, when installing new equipment that eliminates jobs.
But in any case, the staff reduction is carried out in accordance with Art. 178. And it is necessarily preceded by the approval of a new staffing table, which becomes the basis for the reduction and termination of the employment contract with a specific person.
When an enterprise or individual entrepreneur is liquidated, employees are also dismissed (part 2 of article 140). But in this case, all employees are dismissed, including those categories that are not subject to reduction, for example, pregnant women who are caring for a baby, etc.
Who do not have the right to reduce
After the approval of the new staffing table, where there are a number of provisions providing for staff reductions, the question of reducing real jobs will arise. So, it will be considered which of the employees needs to be fired and who should be left. A number of categories have protective guarantees that prohibit their dismissal.
Yes, Art. 261 of the Labor Code of the Russian Federation provides for special rights of the following categories:
- Pregnant women.
- Mothers with children under 3 years of age.
- Single mothers with children up to 14 years of age.
- Mothers raising children with disabilities under the age of 18.
- Persons raising children without a mother, up to 14 years of age.
According to Art. 269 you cannot fire an employee who is under 18 years old.
You cannot fire an employee who is on a temporary disability sheet or on vacation.
Important! The dismissal of these categories of workers is possible only with the complete liquidation of the organization. If a position is liquidated, the person must be offered another vacant position. At the same time, it does not have to be equivalent in terms of qualifications and remuneration.
Some other categories of workers also enjoy the right of preference with equal indicators and qualifications (Article 179):
- If this employee is the only employee in the family who has earnings.
- Disabled people who have received injuries or occupational diseases at this enterprise.
- Disabled veterans of the Great Patriotic War or invalids of military operations for the defense of the Fatherland.
- Employees who undergo training (upgrade their qualifications) in the direction of the organization on the job.
- Employees with two or more dependents.
In what cases will dismissal be unlawful?
From all of the above, it should be concluded that a number of people of several categories cannot be fired due to staff reduction, they should be offered another job, they can be fired later by agreement of the parties or of their own free will. Here, layoffs to reduce staff would be unlawful.
Another important point is the decision of some managers to offer the dismissal of employees not by redundancy, but of their own free will. This is usually dictated by the desire to save on payments due to the category subject to reduction. But not allowed to persons resigning of their own free will. Upon dismissal of one's own free will, it will not be possible to appeal the illegality.
It will be unlawful to dismiss a person who is on sick leave or on vacation. The procedure for the dismissal of employees to reduce staff has a clearly defined mechanism that provides for a number of actions.
If at least one of them is violated, the dismissal may be considered unlawful. This:
- Drawing up and approval of a new staffing table.
- Notification of employees about layoffs (posting an order) 3-2 months before the expected date of layoffs.
- Notifying each employee individually (in writing) at least 2 months before the proposed dismissal.
- Issuing a notice of dismissal.
- Full settlement with the employee on the day of dismissal.
Here, for example, dismissal without a written notice to each individual may result in the unlawful dismissal of a particular employee (he was not notified properly).
In practice, the absence of one of the listed leadership steps can be considered as an illegal dismissal.
Reasons and grounds for reducing the rate of an employee of an organization
It should be noted that a reduction in the size of the tariff rate for an employee due to the difficult financial situation of the employer is unlawful. Therefore, it is not entirely correct to consider it as one of the alternatives to downsizing. Moreover, it is forbidden by law to reduce the wages of employees due to the difficult financial situation of the organization (enterprise).
Tariff rate reductions are carried out in accordance with Art. 74 of the Labor Code of the Russian Federation and carrying out such is possible:
- In the presence of changes in equipment and / or production technology.
- In the case of improving jobs (the basis is certification).
- With structural reorganization.
- Other reasons put forward by the employer (but they can be challenged in court).
Provided that these changes entailed a decrease in the actual amount of labor to perform its work function. At the same time, it is impossible to change the labor function itself.
For example, equipment (car) was purchased, which now performs part of the physical work of a loader worker for him. In this regard, he reduced the rate by 30%. Or if, as a result of structural reorganization, the employee no longer needs to perform one of the actions he takes, for example, when packing goods, there is no need to carry packaging paper, which is 25% of the work performed.
At the same time, such a reduction in the tariff salary should be preceded by a number of actions on the part of the enterprise:
- Issuance of an order on the need and implementation of changes, with their justification. Carrying out other activities necessary to make changes.
- Notices of the primary trade union organization.
- Notifications to the employee about upcoming changes in working conditions 2 months in advance (in writing).
- Conclusion of an additional labor agreement, which will reflect changes in the size of the tariff rate.
In case of disagreement with the reduction of the tariff rate, the employee may be offered another job at the same enterprise, or he may be fired:
- According to paragraph 2 of part 1 of Art. 81 for downsizing. Here he will be paid all due compensation.
- According to clause 7.h. 1 st. 77 as having refused to work in the new conditions. In this case, payments fall under Part 3 of Art. 178.
If a person was notified of the changes and started working after the expiration of 2 months, but an additional agreement was not signed, then this is interpreted as an actual agreement with a reduction in the tariff rate.
The procedure and rules for the reduction of an employee in an enterprise
Reduction of staff concerns a specific person only when he was informed by signature that he would be fired due to a reduction in staff. The employee must be notified at least 2 months before the expected date of dismissal. If for any reason he refuses to sign the familiarization order, then an act is drawn up, which testifies to his notification.
After notification of the reduction of the position, the management, if there are vacancies in the enterprise, must offer them to the dismissed person. In addition, if there are vacancies in another locality, they may also be offered.
If during the period of these two months the person manages to find another job, he can notify the management and receive the calculation earlier by means of a written application. In this case, he will be paid compensation in the amount of the average monthly earnings.
On the day of dismissal, the employee is issued a work book with all the entries made in it, as well as a certificate of income for the last 2 years, all other certificates that the dismissed person requires.
A full account is required. In some cases, there is a dispute over payments. If this happens, then only the undisputed amount is paid on the day of dismissal.
Important! The period of 2 months for notice of reduction is established by law for permanent employees. Temporary employees must be notified at least 2 weeks in advance. For those who are hired for up to 2 months - this time is 3 days.
The procedure for calculating payments
Funds must be accrued and issued to the dismissed person on the day of his dismissal. The day of dismissal is the day of full settlement with the employee.
The only exceptions are cases where the employee disputes the amount of payments. Then on the day of dismissal he should be paid an undisputed amount.
The amounts of these payments are usually significant, often the employer asks employees to leave of their own free will or by agreement of the parties. With these formulations, payments for job search and additional benefits are not provided.
The amount of cash payments will depend on several factors:
- Forms of employment: permanent or temporary.
- The salary of the dismissed person. In fact, all states are calculated from the average salary of the dismissed person.
- The number of unpaid other payments: vacations, sick leave, business trips.
Terms and amount of accrual of funds
Upon dismissal, a full settlement is made with the employee, while he will not only be given the requested certificates, a work book and terminate the employment contract, but will also make a full cash settlement. The amount given to the dismissed person must include all payments due to him. Among them will be:
- The amount of severance pay in the amount of the average salary for 1 month.
- The amount of average earnings paid for the duration of the job search (for 2 months, sometimes 3).
- The amount of additional compensation (2 more average monthly salaries).
- Compensation in monetary terms for all unused vacations.
- Payments for all unpaid sick leave and business trips.
- Salary for the hours worked (the day of calculation is also paid).
Important! If there were paid, but unused, money is not returned.
For temporary workers, the amounts are calculated in two-week amounts.
Rights and guarantees of employees in case of redundancy
The legislator has provided some rights and guarantees for employees who are subject to redundancy. They are mainly aimed at a more systematic dismissal, in which there is a period that should allow the dismissed person to adapt to new conditions and find a job.
A number of rights and guarantees are provided for in Article 81. Here, the employer undertakes to offer the employee who falls under the reduction of another vacant position at the enterprise (if any). If the enterprise has branches or divisions, including in other cities, then the employee may be offered a job there.
An employee can use another right (Article 179) if he managed to find a job before the expiration of a 2-month period. Here, in agreement with the employer and on the basis of a written application, he can be dismissed earlier, but he is paid an allowance in the amount of the average monthly earnings.
In addition, with this type of dismissal, persons are entitled to a severance pay in the amount of two average monthly salaries and unemployment assistance from the employment service for 2 months (Article 178).
The rights of the dismissed person also include the obligation of the employer to notify the employment service authorities of planned activities 3 months in advance. It is believed that this will allow the laid-off persons to find work more quickly.
- When the benefits under Art. 179, they are valid only when considering the position held. If the employee applies for another position, then they may not be taken into account here.
- Temporary disability is a reason that does not allow the dismissal of an employee under Art. 178. But dismissal after the end of the sick leave cannot be canceled. As a rule, in such cases, it will turn out to work a little longer, but avoiding dismissal is not.
- Sometimes it becomes necessary to get a certificate from a previous place of work. According to the law, it can be obtained both upon dismissal and after it. At the same time, there are no deadlines that would limit the receipt of a particular certificate. But the employer must provide it within three days after the application. In this case, the document must contain all the necessary details and be certified.
the employer has the right to determine independently. But setting out such a basis in a reduction order for a legal dismissal is not enough. Read the article about what could be the reason for the reduction.
The reality of the reduction as a condition for the legality of dismissal
Dismissal of an employee under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation (reduction of staff) will be lawful only if the reduction in staff or the number (or both) of workers actually took place. Let's explain the concepts of "downsizing" and "downsizing":
Not any change in the organizational structure of the enterprise is the basis for the dismissal of employees for reduction, since it may not lead to a reduction in the number or staff (for example, renaming and moving positions from one unit to another). The fact of the reduction must be confirmed by making appropriate changes to the staffing table, that is, it should be clear that staff units for certain positions or specific positions have been excluded.
The actual basis for staff reduction: what can be indicated in the order
Labor legislation does not define the goals and grounds for reducing the state or number of employees, and also does not oblige the employer to justify his decision to reduce.
Don't know your rights?
Indeed, the employer has the right to decide for himself how to place personnel in the enterprise in order to achieve the desired economic effect. The main thing during the reduction is the observance of the guarantees provided for by the Labor Code of the Russian Federation in relation to the dismissed employees. This is also confirmed by judicial practice (ruling of the Constitutional Court of the Russian Federation of December 18, 2007 No. 867-O-O, cassation ruling of the Amur Regional Court of June 1, 2011 in case No. 33-2509 / 11).
There can be many reasons for an employer to make a layoff. Let's list some:
- economic - reduction in the volume of production of goods, performance of work or provision of services, suspension of activities, increase in taxes;
- structural - change in the management system, organizational structure (for example, due to the identification of inefficient units), reorganization;
- technological - automation of production, replacement of equipment with a more advanced one, introduction of innovative technologies.
The foregoing does not mean that the rationale for the relevant measures should not be indicated in the reduction order. On the contrary, it must be specified. At the same time, the employee’s mere disagreement with the rationale for the reduction (without additional arguments) is not enough to recognize the dismissal as illegal. But if facts are revealed that testify to the fictitious reduction, the court will reinstate the employee at work.
Signs of a fictitious reduction: judicial practice
Often, employers use layoffs to get rid of objectionable employees, or simply do not follow the layoff procedure established by the Labor Code of the Russian Federation. Consider several situations that may arise as a result of neglecting the rules of reduction or attempts by the employer to circumvent the law:
- The position has been reduced, but at the same time a new position with similar responsibilities has been introduced. Under such conditions, the probability of recognizing the dismissal as illegal due to the absence of an actual staff reduction is very high (determination of the Supreme Court of the Republic of Chuvashia dated April 18, 2016 in case No. 3-1840/2016, appeal ruling of the Kurgan Regional Court dated August 14, 2014 in case No. ).
- The position has been reduced, while a new position has been added, which, in addition to similar duties, provides for additional ones. According to some courts (as a rule, appeal and subsequent instances), while maintaining the need for certain work and the need to expand the duties of the position, there are grounds for changing the terms of the employment contract, but not for reducing. Therefore, dismissal in such cases is often recognized as illegal (appellate ruling of the Kurgan Regional Court dated August 14, 2014 in case No. 33-2429 / 2014).
- At the time of dismissal of the employee, his position is still not excluded from the staff list. In this situation, the reinstatement of the employee at work by the court is the most likely outcome of a labor dispute. Therefore, it is important to make timely changes to the staffing table (appeal ruling of the Moscow Regional Court dated February 26, 2014 in case No. 33-2832 / 14).
The content of the order to reduce employees
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The employer's decision to make redundancies must be documented. In organizations, the issues of reduction can be attributed by the charter to the competence of the sole or collegiate management body. In the first case, an order is issued, in the second - a protocol. Individual entrepreneurs draw up the reduction of employees by order.
The reduction order must include:
- an indication of the reason for the reduction in the preamble;
- the specific number of positions to be excluded within certain positions and/or positions to be excluded;
- specific instructions - on the preparation of a new staffing table, on the creation of a commission to determine the benefits of staying at work, on notification of layoffs of employees, the trade union, the labor inspectorate, and on the proposal of vacancies to laid-off workers.
As can be seen from the article, the specific grounds indicated by the employer in the reduction order are not significant in the context of the legality of the dismissal. When carrying out relevant activities, the employer should pay more attention to confirming the reality of the reduction.
Tatyana Shirnina, Senior Associate at the Labor Law Department of the Institute of Professional Personnel Officer, explains what mistakes employers most often make when laying off staff, what should be taken into account when dismissing different categories of employees, and what guarantees and compensations are due to the dismissed.
Common Mistakes
If we talk about typical mistakes during reduction, then they include:
- absence (failure to deliver) notice of reduction;
- dismissal of an employee before the two-month notice period;
- failure to notify the employment authorities and the trade union (if any) in a timely manner;
- not offering vacancies if they are available.
When it comes to reducing the number of employees, a fairly common mistake is not conducting or incorrectly assessing the preemptive right (). So, for example, often employers do not have any criteria for assessing labor productivity and qualifications, or these criteria are recognized by the courts as subjective.
Who can't be cut
How and why to prove the fact of reduction
The obligation to prove the fact of reduction lies with the employer. The launch of the reduction procedure begins with the decision of the authorized person of the company to carry out the reduction.
Such a decision must be made in writing. It can be, for example, or . On the basis of this decision, the staff list is published and directly changed. It is these documents that will be the proof of the reduction.
In addition, since labor disputes most often arise after dismissal due to a reduction in the number or staff of employees, the court also investigates whether a new employee was hired for the same position after dismissal. In this case, the reduction may be recognized as illegal ("imaginary"). From this we can conclude that the fact of the presence of a reduction can also be proved by the absence of a position in the staff list in force at the time of the dispute.
Why is a reduction commission needed?
Legislatively, the employer is not obliged to create a reduction commission, but from the point of view of practice, its necessity is beyond doubt.
First of all, it is needed to determine the categories of workers who are not subject to reduction. In addition, the work of this commission is expedient in assessing the pre-emptive right. The Reduction Commission reviews the submitted information for each candidate for dismissal. The decision made on employees who are not subject to reduction and who have the preferential right to remain at work is drawn up in writing - a protocol, a decision, etc.
The commission is created by order of an authorized person. The commission usually includes HR specialists, one or two employees who are members of a trade union (if there is one in the company), and lawyers.
Seasonal workers and conscripts
The legislation provides for specifics in the procedure for reducing seasonal workers and workers who have concluded a fixed-term employment contract up to 2 months. Please note that for other employees with whom a fixed-term employment contract has been concluded for other reasons, the reduction procedure is similar to that provided for employees with whom an employment contract has been concluded for an indefinite period.
The peculiarities of the reduction of seasonal workers and workers with whom a fixed-term employment contract of up to 2 months has been concluded relate to the timing of the notice and payment of benefits.
Thus, an employee employed in seasonal work must be warned of the upcoming dismissal due to a reduction in the number or staff of the organization's employees at least 7 calendar days in advance.
For employees who have concluded an employment contract for up to 2 months, the period is even shorter - they must be notified of the upcoming reduction at least 3 calendar days in advance.
With regard to the payment of severance pay to the specified categories of workers upon dismissal, for seasonal workers, the amount of the benefit is equal to the size of a two-week average earnings. And employees who have concluded an employment contract for a period of up to two months are not paid severance pay upon dismissal, as a general rule, unless otherwise provided by federal laws, a collective agreement or an employment contract.
Dismissal of an employee upon change of ownership
First of all, it should be noted that the change of ownership does not entail the automatic termination of the employment contract with already working employees.
The categories of employees with whom the employment contract can be terminated, and the terms during which dismissal can be made, are limited. Employees with whom labor relations can be terminated on the grounds provided for (change of ownership of the organization's property) include the head of the organization, his deputies and the chief accountant.
The period during which the new owner has the right to terminate the employment contract with the above persons in connection with the change of ownership of the property of the organization must be no later than 3 months from the date of the emergence of his ownership right.
The change of the owner of the property of the organization is not a basis for terminating employment contracts with other employees of the organization.
If the new owner decides to reduce, then the launch of this procedure is allowed only after the state registration of the transfer of ownership.
Guarantees and compensation
Upon termination of the employment contract due to a reduction in the number or staff of the organization's employees, the dismissed employee is paid a severance pay in the amount of the average monthly salary. He also retains the average monthly salary for the period of employment, but not more than 2 months from the date of dismissal (including severance pay).
In exceptional cases, the average monthly salary will be retained by the employee for the third month from the date of dismissal by decision of the public employment service agency, provided that the employee applied to this agency within two weeks after dismissal and was not employed by him.
Pros and cons
Of course, layoffs are not a pleasant thing for an employee, especially during a crisis in the labor market. But still, the reduction, in contrast to the dismissal of one's own free will, has a plus - this is a severance pay paid in the amount of the average monthly earnings and retained by the employee for at least two months.
For the employer, the advantages are obvious - his initiative, that is, the employee cannot refuse, in the future, the optimization of costs and the reduction of the fund for wages. However, such a procedure will only further reduce the fund, since the reduction procedure itself is expensive.
mass layoff
In order for an employer to understand whether he has a mass layoff, you should refer to industry and (or) territorial agreements. He speaks about it.
For example, in Moscow, according to the Moscow tripartite agreement for 2016-2018 between the Government of Moscow, Moscow associations of trade unions and Moscow associations of employers, the criteria for mass layoffs are the indicators of the number of dismissed employees of organizations registered in the city of Moscow, with a workforce of 15 or more person for a certain period of time:
- dismissal within 30 calendar days of more than 25% of employees from the total number of employees;
- dismissal of employees in connection with the liquidation of an organization of any organizational and legal form;
- reduction in the number or staff of the organization's employees in the amount of:
- 0 or more people within 30 calendar days;
- 200 or more people within 60 calendar days;
- 500 or more people within 90 calendar days.
Other nuances
Basically, all labor disputes are related to appealing the reduction procedure, therefore it is better to create a commission before starting the procedure, prescribe the reduction procedure step by step and assess the risks and costs in advance.
Pay attention to the reduction of certain categories of workers - minors and members of the trade union. In relation to these workers, there are also peculiarities in the process of reduction.
In addition, we additionally recommend that you make sure that the employee will not be on vacation on the date of dismissal. It is impossible to control the issue of the employee being on sick leave on the date of dismissal, therefore, it is not necessary to indicate the specific date of dismissal in the notice of reduction. It is better that the wording be general, for example, “... after two months from the date of delivery of this notice, the employment contract with you will be terminated on the basis provided for in paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation”.
Often, employees completely refuse to sign and take a notice of reduction, in this case it is better to activate this fact in the presence of at least two witnesses from among the employees.
Hello dear friends!
Today I have positive news, my friend called, who was laid off, remember? He passed the second stage of the interview and actually got a new job. I keep my fingers crossed for him and hope that everything works out in his favor. You and I have already touched on the topic of staff reduction several times, but the thought does not leave me that we have not done enough. Specifically, we haven't discussed the nuances of who can't be made redundant.
Taking advantage of people's ignorance of their rights, many employers act, to put it mildly, ugly, or rather, illegally. It is your responsibility as professionals and employees to know your rights and to share this information with other employees. Money is good, but you can't buy reputation.
Let's consider:
- What category of workers does not fall under staff reductions.
- Under what conditions does an employee have the benefits of retaining a job.
The topic is small and simple, but important for understanding and assimilation. I do not urge you to cram what is written below, but you need to read and understand, believe me, this information will come in handy more than once in your work and in life. Ready? Let's get started!
Who can't be fired for redundancy?
Sometimes a cut is inevitable. But even in this case, the employer does not have the right to lay off some employees. Who, when and why has special rights and "privileges" in case of downsizing?
We recently wrote about what rights an employee has if a company makes redundancies, and how these rights can be defended: What you need to know about dismissal due to redundancy? But some workers have special "privileges" when they reduce staff or headcount.
Simply put, the employer generally does not have the right to fire them for redundancy. True, the workers themselves are often unaware that they have any special rights. Therefore, before you get upset about the upcoming layoffs, you first need to make sure that you really do not have any benefits, and the employer has the right to lay you off.
Of course, each case is individual, and sometimes it is more profitable to “downsize”, look for a new job and receive financial compensation from the previous employer in parallel. But situations are different, and knowing your rights, in any case, is useful.
So, which employees are considered "irreducible" under Russian law? All of them are listed in the Labor Code.
"Irreducible" workers
By the way, not only individual positions, but also entire divisions, divisions, departments can fall under staff reduction. The employer has every right to do this. But, in any case, during the reduction, the rights of employees must be respected, and those who cannot be reduced must remain in the company. If it is planned to reduce the entire unit, then the "non-reducible" employees should be transferred to other departments of the organization.
The employer does not have the right to dismiss the following categories of employees due to layoffs:
- employees who are temporarily disabled - part 6 of article 81 of the Labor Code of the Russian Federation (medical certificates will be required to confirm disability);
- employees who are guaranteed to keep their jobs during their absence. For example, this includes women on parental leave (Part 4 of Article 256 of the Labor Code of the Russian Federation), as well as other employees on vacation (this includes a variety of types of leave: educational, basic leave, additional, leave without pay) ;
- pregnant women (an exception is the case when the entire enterprise is completely liquidated) - on the basis of Article 261 of the Labor Code of the Russian Federation;
- women raising children under the age of three; single mothers raising a child under the age of 14 or a disabled child under 18, and other persons (this includes guardians, foster parents, etc.) who are raising such children without a mother (an exception to this rule is, again the liquidation of an enterprise or the commission of guilty actions by these persons) - on the basis of Article 261 of the Labor Code of the Russian Federation;
- members of trade unions (their rights are described in paragraphs 2, 3 and 5 of Article 81 of the Labor Code of the Russian Federation);
- representatives of workers who conduct collective bargaining;
- participants in the resolution of collective disputes.
If an employee belongs to any of these categories and was, nevertheless, fired on a reduction, reinstatement through the court is easy, one might say, almost “automatically”.
Employees with "perks"
In addition to workers who cannot be laid off, there are also workers who have advantages over their colleagues. First of all, this applies to a situation where the employer is forced to cut one of two identical positions. For example, out of two accountants working with the “bank, cash desk” section, only one should remain. Whom to choose for reduction? It would seem that the choice depends entirely on the employer. But it is not so.
The Labor Code prescribes to the employer who he should “sacrifice” last. This information is contained in article 179 of the Labor Code of the Russian Federation. If there are two identical positions, then employees with higher labor productivity and higher qualifications should be left in the company.
What if the productivity and qualifications of employees are equal? In this case, the employer must take into account other factors. Of the two employees, one of which is subject to reduction, the right to remain in the organization has:
- employees who have a family with two or more dependents;
- employees whose families do not have other self-employed workers;
- employees who received an industrial injury or occupational disease during the period of work with this employer;
- employees who improve their skills in the direction of the employer on the job;
- invalids of military operations for the defense of the Fatherland.
So, the Labor Code does not proceed from the fact that “in the face of layoffs” all employees are equal. There are employees who should not be laid off, as well as those who should be laid off only as a last resort. If you belong to one of these categories, you should not forget about your rights.
And if you are not among the “privileged” and you have every right to be laid off? In this case, the employer must pay the employees sufficient monetary compensation.
Source: http://www.zarplata.ru/a-id-32187.html
Who can't be fired due to layoffs?
Before making changes to the staffing table, the manager must make a choice of whom he can and should leave in the workplace, and who will have to leave. The criterion for this is not only an indicator of efficiency, but legally defined norms. There are workers who cannot be fired by law, as well as those who have a preferential right to the workplace.
The following categories of citizens cannot be dismissed due to a reduction in the number and staff of employees (Article 261 of the Labor Code of the Russian Federation):
- pregnant women,
- women with children under the age of three
- single mothers raising a child under the age of 14 (a child with a disability - under 18),
- other persons raising these children without a mother.
The following categories of citizens have the preferential right to a workplace during the reduction of employees of the organization (Article 179 of the Labor Code of the Russian Federation):
workers with higher labor productivity and documented qualifications (data on the fulfillment of production standards, on the quality of work, a diploma of higher professional education, obtaining a second education, having an academic degree, academic title, etc.)
with equal labor productivity and qualifications, the following have an advantage:
- family in the presence of two or more disabled family members on the full support of the employee;
The following are considered disabled:
- children, brothers, sisters and grandchildren under the age of 18 or studying full-time in educational institutions, regardless of their organizational and legal form. The exception is institutions of additional education. The norm is valid until the end of such training, and until the age of 23 years. Children, brothers, sisters and grandchildren older than this age, if they became disabled before the age of 18 and have limited ability to work. At the same time, brothers, sisters and grandchildren are recognized as disabled members of the family, provided that they do not have able-bodied parents;
- one of the parents or spouse, grandfather or grandmother, regardless of age and ability to work. A brother, sister or child who has reached the age of 18, if they are engaged in caring for children, brothers, sisters or grandchildren who have not reached the age of 14 and do not work;
- parents and spouse, if they have reached the age of 60 or 55 (men and women, respectively) or are disabled with limited ability to work;
- grandfather and grandmother, if they have reached the age of 60 and 55 years (men and women, respectively) or are disabled with limited ability to work, in the absence of persons who, in accordance with the legislation of the Russian Federation, are obliged to support them (Article 9 of the Law of the Russian Federation " On labor pensions in the Russian Federation”);
- persons in whose family there are no other self-employed workers;
- employees who have received a work injury or occupational disease in this organization;
- disabled veterans of the Great Patriotic War and combat operations to defend the Fatherland;
- employees who improve their qualifications in the direction of the employer on the job;
- other categories of employees provided for by the collective agreement.
In addition, persons specified in federal laws have the preferential right to be left at work:
- authors of inventions (Article 35 of the Law of the USSR dated May 31, 1991 No. 2213-1 “On Inventions in the USSR”);
- spouses of servicemen - in state organizations, military units (Article 10 of the Federal Law of May 27, 1998 No. 76-ФЗ “On the Status of Servicemen”);
- citizens discharged from military service, and members of their families at work, where they entered for the first time after their dismissal from military service, as well as single mothers of citizens undergoing military service by conscription (Article 23 of Federal Law No. 76-FZ of May 27, 1998 " On the status of servicemen");
- persons who have undergone radiation sickness and other diseases caused by the consequences of the Chernobyl disaster and associated with radiation exposure. Persons who received a disability as a result of the Chernobyl disaster. Participants in the liquidation of the consequences of the Chernobyl disaster in the exclusion zone in 1986-1990. Persons evacuated from the exclusion zone. (Law of the Russian Federation of May 15, 1991 No. 1244-1 “On the social protection of citizens exposed to radiation as a result of the Chernobyl disaster”);
- persons exposed to radiation as a result of nuclear tests at the Semipalatinsk test site, who received a total (cumulative) effective radiation dose exceeding 25 cSv (rem) (Article 2 of Federal Law No. impact due to nuclear tests at the Semipalatinsk test site).
Provide written notice of reduction
Two months before the dismissal, the employee must be warned against a receipt for the reduction of his position (part 2 of article 180 of the Labor Code of the Russian Federation).
If he refuses to read the written notice, it shall be sent to his home address by registered mail with the notice. It is also necessary to draw up an act of refusal to read the written notice. Subsequently, this will help the employer if the former employee goes to court with a lawsuit on the illegality of the dismissal procedure. The employer will be able to document that he did everything to comply with the procedure, and it was the employee who violated it.
Issue a reduction order
The two main documents that launch the process of staff reduction must be drawn up at the first stage of this process. So it is necessary to issue an order to reduce the number or staff of employees, as well as prepare and approve a new staffing table with a date for its entry into force after the end of the reduction procedure.
Notify the employment authorities and the trade union
It is necessary to notify the employment service authorities and the elected body of the primary trade union organization in writing about the upcoming dismissal of workers no later than two months before the start of the relevant events. In case of mass dismissal of employees - no later than three months. It is necessary to indicate the position, profession, specialty and qualification requirements for employees, the terms of remuneration for each individual employee.
A dismissal is considered massive if:
- an enterprise of any organizational and legal form with a staff of 15 or more people is being liquidated;
- the staff of the enterprise is reduced in the amount of:
- 50 or more people within 30 calendar days;
- 200 or more people within 60 calendar days;
- 500 or more people within 90 calendar days;
- 1% of the total number of employees is dismissed due to the liquidation of enterprises or a reduction in the number or staff within 30 calendar days in regions with a total number of employees less than 5 thousand people.
Industry or territorial agreements may establish other criteria for assessing mass releases.
Suggest another position
After the employer has informed the employee in writing about his future reduction, he must take measures to employ the employee. The Labor Code requires that each dismissed employee be given the opportunity to transfer to an existing job in writing (part 1 of article 180 of the Labor Code of the Russian Federation). This implies a transfer within one organization, however, the employer may assist in the transfer of the employee to another employer. Dismissal due to a reduction in the number or staff of the organization's employees is allowed if it is impossible to transfer the employee with his consent to another job (part 2 of article 81 of the Labor Code of the Russian Federation). Failure to comply with this requirement is a violation of labor law.
The employee must submit the refusal of the proposed position in writing. This will provide documentary evidence of his unwillingness to take the proposed position.
The positions proposed for internal transfer must be present in the new staffing table. It is mandatory to have approved job descriptions with a list of duties, and the terms of remuneration must also be approved.
If the company does not have a job that would match the qualifications of the employee, the employer can offer a lower position in the area. The employer is obliged to offer vacancies in other localities, if it is provided for by collective or labor contracts, or agreements.
Request a reasoned opinion from the trade union
If the former employee is a member of a trade union, then before terminating the employment relationship with him, it is necessary to send there a copy of the order and other documents that contain the rationale for such a decision. It is also worth sending a copy of the dismissal order to the union. It is advisable to carry out these actions after 1 month, with a massive reduction - after 2 months from the moment the employee was warned about the upcoming dismissal.
Elected trade union body, in accordance with Art. 373 of the Labor Code of the Russian Federation, considers this issue within seven working days from the date of receipt of the draft order and copies of documents and sends the employer its reasoned opinion in writing.
If the elected trade union body expressed disagreement with the proposed decision of the employer, it shall, within three working days, hold additional consultations with the employer or his representative, the results of which are drawn up in a protocol. If a compromise has not been reached as a result of consultations, the employer, after ten working days from the date of sending the package of documents to the trade union, has the right to make a final decision. It can be appealed to the relevant state labor inspectorate.
Observe a special procedure for certain categories of workers
Dismissal in connection with the reduction of heads (their deputies) of elected collegial bodies of primary trade union organizations (including within two years after the end of their term of office), elected collegial bodies of trade union organizations of structural divisions of organizations (not lower than shop and equated to them), not exempted from their main job, as well as employees under the age of eighteen years, in addition to the general procedure for dismissal, subject to the provisions of Art. 269, 374, 376 of the Labor Code of the Russian Federation.
Issue an order to terminate the employment contract
It must be remembered that it is not allowed to dismiss an employee at the initiative of the employer (with the exception of the liquidation of the organization) during the period of his temporary disability and during his vacation.
Familiarization of each employee with the order of dismissal in connection with the reduction in the number or staff of the organization's employees is carried out against signature.
Register order
It is necessary to register the order in the Register of orders (instructions).
Pay severance pay
Calculation and payment of wages, severance pay (in accordance with Article 178 of the Labor Code of the Russian Federation) with all payments due to the employee takes place on the day of dismissal. Calculation of monetary compensation for all unused vacations (a note-calculation is required).
Upon termination of the employment contract in connection with the liquidation of the organization, or a reduction in the number or staff of the organization's employees, the dismissed employee is paid a severance pay in the amount of the average monthly salary. The dismissed person retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).
In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal. This may be due to the decision of the body of the employment service, if within two weeks after the dismissal, the employee applied to this body and was not employed by him.
In accordance with Article 140 of the Labor Code of the Russian Federation, upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee was absent on the day of dismissal, then payments must be received by him no later than the next day. In the event of a dispute about the amount of the amount due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the above period.
Termination of the employment contract before the expiration of the warning period
With the written consent of the employee, the employer may terminate the employment contract with him before the expiration of the two-month notice of dismissal. This is possible when the employer pays him additional compensation. Its size is calculated from the average earnings of the employee in accordance with the time until the end of the termination notice. (Part 3, Article 180 of the Labor Code of the Russian Federation).
Issue a work book and a personal card
Labor books of employees of the organization are filled in in accordance with the Rules for maintaining and storing labor books, approved by Decree of the Government of the Russian Federation No. 225 dated April 16, 2003 and Instructions for filling out work books (Appendix No. 1 to the Decree of the Ministry of Labor of Russia dated October 10, 2003 No. 69). The work book is issued to the employee on the day the employment contract is terminated.
The employer has the right to decide on the reduction of positions in his company. What you need to know if you are laid off
Do they have the right to cut me off?
If the employer has decided to reduce the staff at the enterprise, he must notify the employees who occupy the reduced positions. This must be done at least 2 months before the proposed reduction.
However, not all employees can be laid off. Cannot be shortened:
- employees who are on sick leave at the time of the reduction. This is stated in paragraph 6 of Art. 81 of the Labor Code of the Russian Federation;
- employees who are on parental leave (clause 4, article 256 of the Labor Code of the Russian Federation)
- employees who are on vacation - annual, additional, educational or administrative;
- pregnant women and women with children under 3 years old;
- members of trade union organizations;
- representatives from the employer who participate in collective bargaining or participate in the resolution of collective disputes.
These workers cannot be laid off.
There are still such categories of workers who have another "privilege" - the right of preferential retention at work. First of all, these are specialists with higher qualifications.
If we consider two identical employees, the priority right will be:
- an employee with 2 or more dependents;
- a disabled person, including those disabled as a result of hostilities in which Russia participated;
- WWII veterans;
- an employee who is the only breadwinner in the family;
- an employee who has been injured through the fault of the employer;
- an employee who improves qualifications at the expense of the employer and for his purpose.
In addition, if a collective agreement is concluded at the enterprise, it may indicate additional categories of employees who have a pre-emptive right.
On what grounds can they reduce
An employee can be made redundant for two reasons:
- if the employer decided to reduce positions, that is, staff. That is, the exclusion from the staff list of some positions;
- liquidation of the enterprise.
The employer is not required to notify employees of the reasons for the reduction of their positions.
The rights of the employee during the reduction
Every layoff worker should know their rights. This right to:
- receiving a written notice of the reduction of his position at least 2 months before the proposed reduction; in addition, he must sign the notification;
- obtaining any other position that suits him in terms of qualifications and health. This position may be lower and less paid. The employee has the right to refuse it, but after the refusal, such an employee is reduced;
- receiving monetary compensation;
- time off unused vacation;
- dismissal before the end of the reduction period;
- appealing the reduction in court if the reduction procedure was not followed or if the employee cannot be reduced for the reasons indicated above.
In the event of a decision to appeal the reduction, it is necessary to file a claim within a month after receiving the order to reduce or the work book.
Reduction Compensation
Upon dismissal due to redundancy, each "reduced" employee has the right to receive severance pay. Its size is equal to the average monthly earnings of an employee at this enterprise. Also, the employee must receive compensation for unused vacation days.
If the reduced employee does not get a job in the near future after the reduction, the employer is also obliged to pay him the average monthly salary, but not longer than 2 months.
To receive this compensation, the former employer must submit a work book in which there will be no entry about the new place of work.
The employer will be obliged to pay the “reduced” employee an allowance for the third month of unemployment only if such an employee was registered with the Employment Center within 2 weeks after the reduction and still has not found a job.
There is another nuance that not all workers know. The employer must pay another allowance if the latter quits of his own free will immediately after receiving the notice of reduction. The amount of this benefit is calculated in proportion to the days not worked before the expiration of the 2-month period.
Such compensation must be reflected in the documents - that is, an additional agreement to the contract must be drawn up, in which the existence of such a payment must be indicated.
If a collective agreement is concluded at an enterprise, then it may provide for additional compensation in case of staff reduction or liquidation of the enterprise.
In the work book of "reduced" employees, there should be an entry "dismissed due to staff reduction (liquidation of the enterprise)", and a reference must be made to the relevant article of the Labor Code of the Russian Federation - clause 1 or clause 2 of Art. 81 of the Labor Code of the Russian Federation.
Step-by-step instructions for the reduction procedure
Every employer should remember that mistakes made during the layoffs can bring really serious problems in the future. Any employee who believes that he was laid off illegally will have the right to apply to the authorized body with the appropriate claims.
In accordance with the current rules, the reduction procedure provides for the following main stages:
- Advance notification of downsizing employees that they will be fired soon. This step is mandatory, so skipping it is not allowed. Notice to employees must be formal. For this, the employer draws up a special document. It contains basic information regarding the date of reduction, as well as other important information, including:
- the immediate reason for the employer's layoffs, along with references to relevant legal provisions;
- information regarding other positions to which the employee may move. Such jobs should be suitable for him on the basis of all characteristics, including the qualifications of the employee, various medical contraindications, etc.
The completed notice must be given to employees. If he understands the information presented in the document and he has no objections to this matter, he must put his personal signature on the notification.
- Notification of other authorities about the fact of the imminent reduction of employees. In most cases, this authority will be the local branch of the employment service. It is there that the employer must send a document that includes the following information:
- a complete list of employees who will be subject to reduction;
- information regarding the immediate reasons for the employer to make such a decision;
- additional data that will be directly related to the issue of the ongoing reduction.
- Drawing up an order, as well as other necessary documents. The reduction order is drawn up in accordance with the current form. One separate order must be formed for each downsizing employee. All information specified in the order must be supported by relevant legal grounds and references to legislative acts. As soon as the order is created, the employee must be familiarized with its contents without fail. Moreover, the familiarization procedure itself must be confirmed by the personal signature of the subordinate in the appropriate place in the document. It should be remembered that the absence of such a signature will actually mean that the employer has violated the rules on the reduction procedure.
- Conducting a full settlement with each downsizing employee. The current rules state that every laid-off employee should receive monetary compensation if he was unable to find a job within the first two months from the date of dismissal. The amount of such compensation is equal to the sum of two earnings of the subordinate.
- Filling out the work book of the dismissed employee, as well as issuing all necessary documents to him. An entry regarding the immediate reason for dismissal must be made in the employment document of the laid-off employee. The same entry contains a link to the relevant article of the Labor Code of the Russian Federation. After entering all the important information, the signature of the responsible person is put, as well as the seal of the organization.
Who can't be cut?
The current labor legislation established a list of special categories of employees who cannot be reduced by a unilateral decision of the authorities under any circumstances. These include the following individuals:
- Parents of a child with a disability, provided that the child has not yet reached the age of majority established in the country.
- Employees who are raising their son or daughter alone. This right is retained by them only if the child has not yet reached the age mark of 14 years.
- Female workers with three or more children.
- An employee who is the only breadwinner in his family and who has a child under three years of age.
- Pregnant workers.
The employer will not be able to reduce all employees from the above categories by a unilateral decision. Moreover, this cannot be done even if the employee himself does not object to his own reduction. The only exceptions will be such situations in which we are talking about the complete liquidation of the organization. In this case, absolutely all employees will be subject to unilateral dismissal, regardless of their category and their additional benefits.
Responsibility for violation of the downsizing procedure
For each violation that was committed by the head of the organization during the downsizing, certain liability measures will be established in relation to him. The exact types of penalties in this case will depend on the specific violation committed by the head, for example:
- One of the most common violations in modern practice is the employer's failure to comply with the established deadlines for providing employees with monetary compensation. In this case, the manager will have to pay each employee the required amount of compensation, to which additional interest will be added for the delay in fulfilling financial obligations. The amount of interest will be equal to 1/150 of the current rate of the TP of the Russian Federation for each day of delay in payment. The same rule will also apply in the event that the employer commits such a violation as the delay in issuing a work book to a reduced employee.
- The next very common violation will be the employer's ignoring his direct obligation to offer other vacancies to the downsizing employee. Here, in relation to the guilty person, such a measure of responsibility as the establishment of a fine is applied.
Naturally, in modern practice, one can also find numerous other violations that are committed by leaders during the reduction. In such cases, each employee will have a legal right to appeal to the authorized body. An application can be submitted, for example, to the Labor Inspectorate or to a judicial institution. In the case of really serious violations of the law by the head, the best solution may be to contact the employee with the prosecutor's office.
After receiving the relevant application by the representative of the authorized instance, most likely, a decision will be made on the appointment of an unscheduled inspection. It is a special procedure, as a result of which serious measures of responsibility can be assigned to the guilty person. In addition, the results of the check can be sent to the court to initiate an administrative or even criminal case.
