In practice, this seemingly simple condition raises many questions. Can a position that is temporarily vacant, for the period of parental leave, be considered vacant? Is the position occupied by an internal or external part-time job vacant? Let's figure it out.
When should you post a job?
You will find all the reasons for dismissal, and there are more than fifty of them, in the table that I compiled for beginner personnel officers. . Based on the table, we see that the employer is obliged to offer the employee vacancies if the dismissal occurs for the following reasons:
- In view of the continuation of work due to the change certain parties conditions employment contract(clause 7, part 1, article 77 of the Labor Code of the Russian Federation);
- In connection with the refusal of the employee to transfer to another job, necessary for him in accordance with medical opinion(clause 8, part 1, article 77 of the Labor Code of the Russian Federation);
- In connection with the violation of the rules established by the Labor Code for concluding an employment contract (clause 11, part 1, article 77 of the Labor Code of the Russian Federation);
- In connection with a reduction in the number or staff of employees of the organization (clause 2, part 1, article 81 of the Labor Code of the Russian Federation);
- In connection with the inconsistency of the position held due to insufficient qualifications, confirmed by the results of certification (clause 3, part 1, article 81 of the Labor Code of the Russian Federation);
- In connection with the reinstatement of an employee who previously performed this work, by decision of the state labor inspectorate (clause 2, part 1, article 83 of the Labor Code of the Russian Federation);
- In connection with disqualification, which excludes the possibility of the employee fulfilling obligations under an employment contract (clause 8, part 1, article 83 of the Labor Code of the Russian Federation);
- In connection with the deprivation of the employee of a special right, which entailed the impossibility for the employee to fulfill his obligations under an employment contract (clause 9, part 1, article 83 of the Labor Code of the Russian Federation);
- In connection with the termination of access to state secrets (clause 10, part 1, article 83 of the Labor Code of the Russian Federation);
- In connection with the emergence of restrictions established by the Labor Code, excluding the possibility of fulfilling obligations under an employment contract, on engaging in certain types of labor activity(clause 13, part 1, article 83 of the Labor Code of the Russian Federation).
Job offers must be made in writing. The employee, in turn, also expresses his consent or disagreement in writing with the transfer to the proposed positions. There is no legally fixed or recommended form of this document, therefore Other job offer drawn up in free form, according to the type of notification.
What positions are vacant
When examining judicial practice, one simply marvels at how often employees dispute the legality of their dismissal, believing that they were not offered all the vacancies that were in the company. But we can say that the courts have developed a clear and consistent position on this issue.
What is a vacancy in terms of the law? This is a staff unit for which no employee is accepted. That is, not occupied by anyone, an empty position. The positions held by part-timers are not vacant. Positions occupied by female workers on maternity leave, child care, and other temporarily absent employees are also not vacant. The employer is not obliged to offer these positions in the process of dismissal on the above grounds. But you can offer, it is not against the law.
I must say that among lawyers and personnel officers, one can still find the opinion that it is imperative to fire if it becomes necessary to offer vacancies to other employees. The courts do not support this position. Yes, Article 288 of the Labor Code of the Russian Federation gives the employer the right to terminate the contract with a part-time job in the event of hiring an employee for whom this work will be the main one, but does not at all oblige to do so. The employer has the right to independently make personnel decisions based on the interests of the company. This was explained by the Plenum of the Supreme Court in its Resolution No.
How to prevent conflict
To extinguish conflicts at the stage of their inception, we can draw up two Offers another job if you want to help the employee and you have the opportunity to do so. In one Proposal, list the vacant "clean" positions, in the other - not vacant, but temporarily free, as well as halves of the rates occupied internal part-timers. In the second case, be sure to specify restrictive conditions: fixed-term contract, incomplete rate, etc.
If there are no vacancies, then it is better to issue a notice of the absence of another job in the company. This also helps to reduce the conflict situation, eliminating rumors and speculation.
This question seems simple only at first glance. But in practice, it occurs quite often in cases where, before the dismissal of an employee, the employer is legally obliged to offer him another job. In such situations, personnel officers have doubts whether to offer rates that are reserved for a permanent employee, but in this moment it does not fulfill its function. Most often, we are talking about the so-called "maternity" rates - the employee is on parental leave.
Let's agree on terms
Translation is a permanent or temporary change labor function employee and (or) the structural unit where he works, if information about this structural unit was specified in the employment contract.
First of all, let's remember in which cases the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) obliges the employer to offer the employee a transfer to another place of work before dismissal:
- When carrying out measures to reduce the number or staff of employees (clause 2, part 1, article 81 of the Labor Code of the Russian Federation);
In connection with termination of an employee's access to state secrets if the work performed requires such a permit (clause 10, part 1, article 83 of the Labor Code of the Russian Federation);
- Upon reinstatement of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2, part 1, article 83 of the Labor Code of the Russian Federation)
- In case of disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract (clause 8, part 1, article 83 of the Labor Code of the Russian Federation);
Upon expiration, suspension for more than two months, or depriving an employee of a special right if this entails the impossibility for the employee to fulfill the obligations under the employment contract (clause 9, part 1, article 83 of the Labor Code of the Russian Federation);
In the event of the occurrence of the established Labor Code of the Russian Federation, otherwise federal law and excluding the possibility of the employee fulfilling obligations under an employment contract restrictions on engaging in certain types of work(clause 13, part 1, article 83 of the Labor Code of the Russian Federation);
At the employee has a medical certificate, according to which he needs to be transferred to another job (clause 8, part 1, article 77 of the Labor Code of the Russian Federation).
In all these cases, the Labor Code of the Russian Federation says that dismissal on the appropriate grounds is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer. At the same time, the law indicates that the employer must offer both a vacant position or a job corresponding to the qualifications of an employee, and a vacant lower position or lower paying job that an employee can perform taking into account his state of health. The employer is obliged to offer all the vacancies that meet the specified requirements that he has in the given area.
Note!
The law says that in the situations under consideration, the employer must offer vacancies, taking into account the qualifications of the employee, as well as vacancies that require lower qualifications.
The employer is not obliged to offer higher vacancies. But he can do this if he considers the qualifications of the employee sufficient to perform such duties. But in this case, it must be remembered that during the transfer it is impossible to assign probation. So, alas, there will be no opportunity in practice to check whether the employee will cope with the new assignment.
Some consider vacant only those positions that are completely free, that is, they are not reserved for another employee. Others argue that those who are laid off should be offered as vacant positions that are retained by other employees due to the requirements of the law.
It seems more logical that only such positions are vacant that are not occupied by formalized in in due course employees.
By definition, a vacant position (Latin vacans - empty) cannot be occupied, therefore an employee is accepted for it on a general basis. Places occupied by part-time workers, as well as those reserved for employees who are actually absent from work, are not vacant. This is the position taken by most courts.
When appealing the dismissal, the employee indicated that he was not offered a vacant position in the same organization in accordance with the law. However, in court this position was not recognized as vacant, since it was replaced by an employee who was on parental leave. The court came to the conclusion that when reducing the staff, the employer is not obliged to offer employees temporarily vacant positions (see the appeal ruling of the Moscow regional court dated November 30, 2015 in case No. 33-29465/2015).
At the same time, in judicial practice there is a different interpretation of this concept and a different approach to determining jobs to which a transfer can be offered upon reduction. Separate judgments indicate that the employer should have offered the employee to be made redundant a transfer to a "temporarily vacant" position. However, this approach is contrary to labor legislation and the essence of labor relations.
After all, upon dismissal, for example, on a reduction, in case of refusal to transfer or lack of vacancies in the organization, the employee receives significant severance pay and guarantees for the period of employment. And if he agrees with the transfer to a temporarily vacant position, he loses these guarantees. Moreover, a difficult situation arises for the personnel officer. Temporary transfer(and here we can only talk about him) implies the preservation of the former place of work and the possibility of returning to it. And just this in this case impossible. And the question will arise with the dismissal of the temporarily transferred, when the main employee decides to return to work.
There is no official explanation from Rostrud on this issue, but there are documents that indirectly confirm the position "a vacancy is a free position."
So, in the order of the Ministry of Health and Social Development of Russia dated July 3, 2006 No. 513"About approval administrative regulations Federal Service on labor and employment on the provision public service assistance to citizens in search suitable job, and employers in the selection of the necessary workers " the concept of "vacant positions" is used in the meaning of "vacant jobs" for which employees can be accepted.
The same approach can be seen in the following the answer of the representative of Rostrud:
“Question: an employee went on vacation with subsequent dismissal. Is it possible to take a permanent employee in his place from the first day of vacation? Is from this day workplace vacant?
Answer: the organization can accept a new employee in place of the one who went on vacation with subsequent dismissal only at the end of the vacation former employee, but you can conclude a fixed-term employment contract for the duration of the vacation.
Justification: in accordance with Part 3 of Art. 84.1 of the Labor Code of the Russian Federation, the day of termination of the employment contract in all cases is the last day of work, except for cases when the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal law, a place (position) was retained for him. In accordance with Art. 114 of the Labor Code of the Russian Federation, employees are provided annual leave with the preservation of the place of work (position) and average earnings.
Thus, the position of an employee who, in accordance with the established procedure, has exercised his right to leave with subsequent dismissal, will become vacant only after the date of dismissal indicated in the relevant order and work book. The organization cannot accept a permanent employee for this position, since the former one has not yet been fired, but it is possible to conclude a fixed-term employment contract for the duration of the vacation.
Based on the foregoing, I believe that it would be correct in appropriate situations to offer only really vacant places for transfer. If the employee insists that he be transferred to a “temporarily vacant” position instead of dismissal, explain to him all the risks of such a transfer. And besides this, in case of litigation, ask what exactly the position on this issue is taken by the court in whose jurisdiction your organization is located.
Fedorova E.E.,
labor law expert, lecturer .
The legislator established the obligation of the employer to offer the employee vacant positions in case of staff reduction. The vacant position must be free, correspond to the qualifications of the employee, and it can also be lower paid or lower. In addition, the vacant position must be located in the same locality
27.05.2015In any activity modern company there may be a need to reduce the number or staff due to business needs. The employer is obliged to fully comply with the reduction procedure provided for by law in order for the dismissal to be lawful. Unfortunately, in practice it is not always easy to exactly comply with the requirements of the law, especially when these requirements are not clear enough and lead to inconsistencies. In this article, we will focus on some of the nuances that may not be taken into account in the proposal process. vacancies, as well as consider controversial issues.
What positions to offer in case of staff reduction?
The Labor Code prescribes to offer the reduced employee positions that meet the following criteria (Article 81 of the Labor Code of the Russian Federation):
- the position must be vacant;
- the work must correspond to the qualifications of the employee or be lower paid (lower position);
- for health reasons, the employee can perform the proposed work;
- the job must be in the given locality, unless there is an obligation to offer work in another locality collective agreement agreements, employment contracts.
However, the Labor Code does not provide more detailed explanations regarding the established criteria for the proposed positions, in connection with which employers have to focus on business customs and judicial practice.
What is a vacancy?
The definition of "vacant position" is not established by law. Therefore, in practice, a vacant position is often understood as a position that exists in the staff list, but is not replaced by any specific employee.
At the same time, a number of issues remain unclear, including the possibility of classifying as a vacancy a position that is filled by a temporarily absent employee (for example, on maternity leave or parental leave). One side, this work is temporarily vacant, since the position is retained by the temporarily absent employee, and therefore is not a full-fledged replacement for the reduced one. However, on the other hand, the legislation does not state that an employer should not offer temporarily vacant positions when he has no other vacant positions.
Unfortunately, there is no consensus on this issue in judicial practice. Thus, the St. Petersburg City Court came to the conclusion that the fact that new job could be temporary, cannot serve as a basis for the absence of its proposal to the reduced employee (cassation ruling of the St. Petersburg City Court dated March 15, 2012 No. 33-3894 / 2012). Because the Labor Code provides for the obligation of the employer to offer the employee any job and does not indicate whether it should be permanent or temporary.
At the same time, the position of the Moscow Regional Court is different: the court points out that the employer is not obliged to offer temporarily vacant positions, since, within the meaning of the current legislation, they are not vacant (appeal ruling of the Moscow Regional Court of December 20, 2012 No. 33-24613 / 2012 ). In addition, the judges determine the vacancy. In their opinion, a vacant position is a vacant position that is on the staff list, not occupied by anyone and not burdened by the rights of other persons, that is, an employment contract has not been concluded for it at the moment (including with an employee who is on parental leave for a child, and with a part-time partner) (appellate ruling of the Moscow City Court dated September 28, 2012 No. 11-2984 / 2012).
It is fair to note that the above definition also provides clarifications for another question that often arises in practice: is the position held by a part-time job vacant? No, it is not, since an employment contract has been concluded under it.
But at the same time, it must be borne in mind that when combining, a separate employment contract is not concluded. However, the agreement for the performance of additional work establishes obligations for the employer, from which he cannot refuse, and by virtue of which he will not be able to offer this work to the reduced employee. In our opinion, these features should be taken into account in each particular case separately, taking into account other circumstances.
How to take into account the qualifications of an employee when reducing staff?
As we have already said, the employer is obliged to offer the reduced employee those positions that correspond to his qualifications or are lower paid and lower. The Labor Code gives a clear definition of the qualifications of an employee. It is understood as the level of knowledge, skills, professional skills and work experience of an employee (Article 195.1 of the Labor Code of the Russian Federation).
The courts point out that the description of qualification requirements in job descriptions is the basis for determining suitability for the position. In this regard, in order to have the appropriate arguments in the event of litigation, the employer needs to make sure that the job descriptions have clear qualification requirements.
In addition, the courts often believe that the employer has the right to assess the real possibility of the reduced employee to perform work in the available vacancies, taking into account his education, qualifications, work experience and existing skills (cassation ruling of the Moscow City Court of July 19, 2013 No. 4g / 2-6454 / 13). That is, the employer, if available work book, documents on education and other available information can judge the qualifications of an employee.
However, unfortunately, the employer does not always have such information in full. An employee, for example, might not provide information about additional education, which was not directly related to the reduced position, but could serve as proof of the employee's qualifications for admission to the vacant position. In this regard, in order to minimize possible risks, the employer should offer the employee the widest possible list of vacancies so that the employee can choose the position that suits his education and experience, independently assessing his qualifications. At the same time, the offer of all vacancies, including those that do not correspond to the qualifications of the employee, is not misleading the employee. This conclusion was reached by the Moscow City Court (ruling of the Moscow City Court dated September 27, 2013 No. 4g/5-9578/13).
Also, employers should be aware of the need to offer the employee all vacant positions, including a lower position or a lower-paid job, for which, in the opinion of the employer, the employee will not agree. Judicial practice confirms that since this duty is enshrined in law, then its violation due to the conviction that the employee will refuse the proposed position may lead to the recognition of the dismissal as unlawful (appellate ruling of the Moscow City Court of 08/06/2013 No. 11-25018 / 13).
Where to offer vacancies?
The employer must offer suitable vacancies available to him in the given area. The obligation to offer suitable positions in other areas arises only if it is fixed by a collective agreement, agreements or an employment contract.
The Supreme Court of the Russian Federation in its decision gave a clear definition of the concept of "other locality". So, another locality is a locality outside the administrative-territorial boundaries of the corresponding settlement (post. Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).
It does not matter if it is a vacancy in another branch or structural subdivisions, since the only criterion is the need to offer all vacancies in the given area.
When and how to offer vacancies?
Since the legislation does not clearly establish when and how to offer vacancies, the employer should offer them during the entire time from the moment of notice of the reduction and up to dismissal. For the purposes of documentary evidence, the employee should be notified in writing against the signature of vacancies indicating the date of notification.
Thus, since the offer of vacancies to redundant employees is one of the elements of the dismissal process, in case of incomplete compliance with the procedure for offering vacancies, the dismissal may be considered unlawful. And this may entail not only the restoration of the employee, but also the payment of average earnings for the period of forced absenteeism and compensation for non-pecuniary damage.
Is the position held by the part-time job vacant?
The law does not contain a definition of the term “vacant position”. However, arbitrage practice adheres to a stable position that a vacant position is one that is not occupied by any employee - the position is indicated in the staffing table of the organization, but an employment contract for its replacement has not been concluded with anyone (determinations of the Vologda Regional Court dated May 18, 2011 No. 33-2323 / 2011, Rostov Regional Court of August 15, 2011 No. 33-11141, etc.).
Part-time employment - the performance by an employee of other regular paid work on the terms of an employment contract in his free time from his main job (Article 282 of the Labor Code of the Russian Federation).
This definition does not allow us to consider a part-time position as a vacant one, since an employment contract is concluded with a part-time worker, as well as with a “regular” employee, and the part-time worker has equal rights with an “ordinary” employee. This position is unanimously adhered to by the courts (determinations of the Moscow City Court dated September 28, 2012 No. 11-2984 / 2012, the St. Petersburg City Court dated July 7, 2011 No. 33-10321, etc.).
At the same time, although an employment contract concluded for an indefinite period with a part-time job may be terminated if a person is hired for whom this work will be the main one (Article 288 of the Labor Code of the Russian Federation), termination of an employment contract with a part-time job is a right, not an obligation employer. Therefore, the employer is not obliged to offer the reduced employee the position occupied by a part-time worker, dismissing the latter and providing the vacant position to the reduced one.
Yuri Ivanov, senior lawyer of practice labor law law firm Goltsblat BLP
Temporarily vacant positions as a vacancy
A vacant position must be understood as a position that is legally (no one is listed in the staff list) and actually is not occupied by anyone. It is not a vacant position in which the employee is listed in the staffing table, but is temporarily not working and can always return. For example, a position retained by an employee for the period of parental leave (Article 256 of the Labor Code of the Russian Federation) or sick leave for pregnancy and childbirth (determination of the IC in civil cases of the Omsk Regional Court dated February 15, 2012 No. 33-1239 / 2012).
If the position is occupied by a part-time job, it is also not vacant. The employer has the right, but is not obliged to terminate the employment contract with a part-time job in the event of hiring the main employee (Article 288 of the Labor Code of the Russian Federation). In addition, work on it is carried out on the basis of a concluded employment contract (Article 60.1 of the Labor Code of the Russian Federation). At the same time, some courts point out that if there is a part-time job for 0.5 positions in any position, the remaining 0.5 free positions are considered vacant (determination of the St. Petersburg City Court dated April 13, 2011 No. 2011). When combining a position without concluding an employment contract, it is also not vacant, since work is performed and wages are paid for it (determination of the IC in civil cases of the Kostroma Regional Court of February 13, 2012 No. 33-36).
Despite the above nuances labor relations, the author recommends that employers, in order to avoid unnecessary conflicts, offer the laid-off employee all suitable and temporarily actually unoccupied positions that are not vacancies in the legal sense. A similar opinion is shared by Rostrud (letter of Rostrud dated July 29, 2009 No. 22636-1). He indicates that the employer can offer the dismissed employee the position of an employee who is on parental leave.
Please note that this position will be temporary, not permanent. And the reduced person must be notified in writing about this in order to avoid complications in possible litigation.
Alexei
If my Employment Contract says: The Employee's place of work - separate subdivision of the Employer in the city of St. Petersburg, the place of performance of official duties - the city of St. Petersburg. The work of the Employee in other places as needed (both within Russian Federation, and beyond) is made out as business trip. The contract was signed in Moscow, where the head office is located. Should an employer, with a reduction, offer vacancies not only in St. Petersburg, but also in all companies, in particular in Moscow time?
Faith
In a week (June 1) my position will be reduced, there is a notice of reduction, there are no positions offered! Does this mean that the employer is obliged to pay me 3 months of benefits while I stand at the labor exchange? And what will happen if I am offered a position below mine and with a lower salary, and I refuse it?
Ludmila
(July 20) my position will be reduced, there is a notice of reduction, there are no positions offered! Does this mean that the employer is obliged to pay me 3 months of benefits while I stand at the labor exchange? And what will happen if I am offered a position below mine and with a lower salary, and I refuse it?
Alyona
Good afternoon! Please tell me, on July 25, 2018, an order was issued to reduce my position. September 26 - the date of the reduction of the position. During this time, I was never offered vacancies, during this time the company caused more than 100 people to work. Today I receive a notification, they say come on September 24 (2 days before the reduction), we will introduce you to open vacancies. The question is, is the company's actions legal?
In some cases, provided labor law, the employer is obliged to transfer the employee to another job he has (of course, if available). Let's focus on its very beginning, more precisely, on the order of the vacancy offer. As it turned out, here the company can also expect a lot of difficulties.
In what cases is the employer obliged to offer the employee another job or position? There are many such situations:
- reduction in the number or staff of employees (clause 2, part 1, article 81 of the Labor Code of the Russian Federation);
- inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification (clause 3, part 1, article 81 of the Labor Code of the Russian Federation);
- reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2, part 1, article 83 of the Labor Code of the TF);
- disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract (clause 8, part 1, article 83 of the Labor Code of the Russian Federation);
- expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to manage vehicle, the right to bear arms, other special rights), if this entails the impossibility for the employee to fulfill his obligations under an employment contract (clause 9, part 1, article 83 of the Labor Code of the Russian Federation);
- termination of access to state secrets, if the work performed requires such access (clause 10, part 1, article 83 of the Labor Code of the Russian Federation);
- the emergence of legal restrictions on engaging in certain types of labor activity, excluding the possibility for the employee to fulfill obligations under an employment contract (clause 13, part 1, article 83 of the Labor Code of the Russian Federation);
- transfer of an employee (including a pregnant woman) to another job in accordance with a medical report (Articles 73 and 254 of the Labor Code of the Russian Federation);
- changing the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions (Article 74 of the Labor Code of the Russian Federation);
- violation of the rules for concluding an employment contract through no fault of the employee, if this excludes the possibility of continuing work (Article 84 of the Labor Code of the Russian Federation), etc.
As a rule, these situations (with the exception of the transfer of a pregnant woman) precede subsequent dismissal worker. And the offer to transfer to a vacant position is one of the guarantees for the employment of an employee, which is established by the Labor Code of the Russian Federation.
So, the law points to the obligation of the employer to offer the employee another job and explains that this should be a vacancy that the employee can occupy, taking into account his qualifications (meet it or require a lower qualification) and state of health (see, for example, Article 81, 83 of the Labor Code of the Russian Federation).
As you can see, the law imposes several requirements for a new job at once:
- the place must be vacant;
- the work must correspond to the qualifications of the employee or correspond to a lower qualification;
- the health condition of the employee allows to perform the proposed work.
In addition, the employer must offer vacancies in the area. You should offer vacancies in another locality when it is provided for by the labor, collective agreement or agreement.
Note
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As follows from paragraph 16 of the Resolution of the Plenum of the Supreme Court dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation Labor Code Russian Federation” (hereinafter referred to as Resolution No. 2), another locality is a locality outside the boundaries of a settlement according to the administrative-territorial division.
It should be noted that the Labor Code of the Russian Federation does not contain any more explanations, requirements and definitions, in connection with which companies have quite a lot of questions. Next, we will consider the most frequent of them, as well as the answers given by judicial practice.
1. What position is considered vacant?
The Labor Code of the Russian Federation does not define a vacant position (or profession). At the same time, and analyzing the current legislation, as well as judicial practice, we can say that a vacancy (from Latin vacans - empty) is an unoccupied workplace, a position named in the staff list, for which a new employee can be hired.
In other words, a vacant position is a position (or profession) that is not occupied by any employee, for the replacement of which no employment contract has been concluded.
It is also worth recalling Resolution No. 2, where clause 10 is devoted to the topic of vacancies. Thus, the employer is not obliged to fill vacancies immediately as they arise. And if the employer, in order to effectively economic activity and rational property management does not want to fill a vacancy, he has the right not to conclude an employment contract on it. However, in order to avoid disputes, management must issue an order to reduce these positions.
2. Is it possible to call a vacant position of an employee who is on long leave or parental leave?
Here the answer immediately suggests itself - no, because for this position (or profession) an employment contract has been concluded with the main employee, who can go to work at any time. That is, it is not necessary to offer such a position to a dismissed employee.
However, case law is not so clear cut. Some courts believe that the employer will have to offer such a position.
Arbitrage practice
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The decision of the Taganrog City Court dated 11/15/2011 in case No. 2-6249-11 states that the employee retains his/her place of work (position) for the period of parental leave. In fact, such a place cannot be called vacant, since the employee has the right to go to work at any time convenient for him. However, if the employer has no vacancies, but there is a temporarily vacant position (due, for example, to parental leave), then he is obliged to offer this position to the dismissed employee. If he agrees with him, a fixed-term employment contract is concluded for the period of absence of the main employee.
Arbitrage practice
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For example, the Moscow City Court, in the ruling of the Judicial Collegium for Civil Cases dated April 14, 2011 No. 33-7225, indicated the possibility of offering a dismissed employee a job in a position retained by a temporarily absent employee.
At the same time, there is also an opposite opinion of the judges.
Arbitrage practice
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Thus, in the cassation ruling of the St. Petersburg City Court dated August 30, 2010 No. 33-11908, it was concluded that temporarily vacant positions are not vacant and should not be offered to a dismissed employee, since work in these positions will be temporary, not permanent.
3. Is the position in which the part-time worker performs the work vacant?
Regarding part-time jobs, the judges are in solidarity: the position occupied by a part-time job is not vacant, since work on it is carried out on the basis of a concluded employment contract (Article 60.1 of the Labor Code of the Russian Federation).
According to Art. 287 of the Labor Code of the Russian Federation, a part-time job, along with workers at their main place of work, is entitled to all guarantees and compensations provided by labor legislation. Therefore, a part-time worker has the right to demand that he be provided with work according to the labor function stipulated by the employment contract on an equal basis with the main employees.
In addition, from a literal interpretation of Art. 288 of the Labor Code of the Russian Federation it follows that the termination of an employment contract concluded with a part-time job for an indefinite period, in the event of hiring an employee for whom this work will be the main one, is the right, but not the obligation of the employer. Accordingly, there is no reason to believe that the position held by the part-time job is vacant.
Arbitrage practice
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Such conclusions are made by the Judicial Collegium for Civil Cases of the St. civil cases of the Supreme Court of the Republic of Komi in the appeal ruling of October 11, 2012 No. 33-4541 AP / 2012.
4. Will the place be vacant if the employee combines work without a separate employment contract?
When combined, a separate employment contract is not concluded. The employee performs additional responsibilities along with the main work for a certain surcharge. Will such a position be considered vacant? The judges think not.
Arbitrage practice
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Thus, in the cassation ruling dated February 13, 2012 No. 33-36, the Judicial Collegium for Civil Cases of the Kostroma Regional Court indicated that the employee working in combination actually performs, along with his work, labor functions in a combined position and receives payment for this. That is, an employment contract for a combined position also becomes concluded and valid. The fact that it is not necessarily drawn up as an independent separate document, but only as an additional written agreement to the main employment contract, does not make it unconcluded or invalid. In addition, as in the case of part-time employment, changing labor duties (as an exception to an additional labor function) of an employee holding a part-time job is a right, not an obligation of the employer. Thus, if a position is occupied by an employee as part of a combination, it is not vacant.
Moreover, the judges explain that there is no infringement of constitutional rights in this case.
Arbitrage practice
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In the ruling of the Supreme Court Udmurt Republic dated March 28, 2011 in case No. 33-978/11, the judges also noted that if the employer considers it more economically justified to conclude a combination agreement than to hire a new employee, then these actions cannot be regarded as infringing on the constitutional right of everyone to work.
Vacant part-time
One more moment. If an employee does not work full-time for any position, then the remaining part of the rate is considered vacant. This conclusion, in particular, confirms the ruling of the St. Petersburg City Court dated April 13, 2011 No. 33-4388/2011.
5. What is a qualification?
Earlier we noted that the second condition for a job offer is that the qualifications of the employee correspond to the proposed job. As in the previous case, the Labor Code of the Russian Federation does not contain a definition of qualification, so we will again turn to the analysis of the current legislation.
From the Unified Qualification Directory for the Positions of Managers, Specialists and Employees (approved by order of the Ministry of Health and social development RF dated August 26, 2010 No. 761n) it follows that qualification is considered a certain level vocational training an employee, certified by documents on education, as well as the necessary work experience.
Arbitrage practice
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In the cassation ruling of the Vologda Regional Court dated May 18, 2011 No. 33-2323, qualifications are defined as follows: this is the level of preparedness, skill, the degree of suitability of an employee to perform work in a particular specialty or position, determined by rank, class, rank and other qualification categories.
All qualification requirements are contained in the following regulations:
- in All-Russian classifier professions of workers, positions of employees and tariff categories(adopted and put into effect by the Decree of the State Standard of Russia dated December 26, 1994 No. 367);
- in Qualification Handbook positions of managers, specialists and other employees (approved by the Decree of the Ministry of Labor of Russia dated August 21, 1998 No. 37);
- in the Unified Tariff and Qualification Directory of Works and Professions of Workers (approved by Decree of the Government of the Russian Federation of October 31, 2002 No. 787).
Based on data qualification requirements the employer is developing job descriptions(or instructions for the profession). And according to paragraph 10 of Resolution No. 2, the employer has the right to supplement these requirements with his own due to the specifics of a particular job.
Subordinate position
So, the Labor Code of the Russian Federation (for example, part 3 of article 81) contains a requirement that the employer can offer a vacancy - both corresponding to the qualifications of the employee, and a lower position. In practice, situations arise when a higher position is vacant, which corresponds to the qualifications of the employee.
Does the employer have to offer it too? Yes, I must. This conclusion is contained in numerous judicial acts.
Arbitrage practice
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From the situation considered in the case, it follows that official duties the deputy general manager and the store manager are essentially identical and aim at the same goals. Based on this, the dismissed manager should be offered the position of deputy general director, although it is a higher one (determination of the Leningrad Regional Court dated 01.27.2010 No. 33-388 / 2010).
Retraining
Another point that judges note in their decisions is that employers are not required to offer an employee a vacancy or a job that will require his retraining. Moreover, the employee cannot demand to offer him such a job, since the need for professional training and retraining of personnel is determined by the employer himself (Article 196 of the Labor Code of the Russian Federation).
This right is exercised, among other things, by concluding a student agreement between the employee and the employer (Article 198 of the Labor Code of the Russian Federation). Such a conclusion is contained, for example, in the decision of the Oktyabrsky District Court of the city of Ufa of the Republic of Bashkortostan dated February 1, 2013 in case No. 2-518/13.
6. What to do if there is only one vacancy, but there are several applicants for the position (whose qualifications and health status are equivalent)?
Some employers refer to Art. 179 of the Labor Code of the Russian Federation, which refers to the pre-emptive right to stay at work, and propose to act by analogy: first of all, offer vacancies to employees with this right. However, many lawyers (and judges too) point out the illegality of such actions, since Art. 179 of the Labor Code of the Russian Federation speaks of the pre-emptive right to remain in the same (same) job.
The pre-emptive right to reduce the number or staff is taken into account when it comes to a partial reduction in staff units for the same position. That is, if several employees who are subject to reduction apply for a vacant position, then the rule on the pre-emptive right to remain at work does not apply to them.
Therefore, in our opinion, all applicants should be offered a vacancy at the same time. Who should be given preference in case of a positive response of all applicants for a position (or profession)? In this case, the right of the employer, independently, under its own responsibility, to make the necessary personnel decisions on the selection, placement and dismissal of employees, is already in effect.
Although this solution to the issue looks somewhat "cumbersome", however, formally, the letter of the law will be fully observed.
7. When should vacancies be offered?
The law does not contain clear instructions to offer vacancies at the time of notification of the employee about the upcoming reduction, changes in the terms of the employment contract, etc.
In this regard, we conclude that the employer should offer the employee vacant positions (including newly appeared ones) throughout the entire period of time, up to the day of dismissal (see, for example, the decision of the Mineralovodsky City Court of the Stavropol Territory dated March 28, 2012).
8. What to do with employees who are on vacation or on "sick leave" if they need to be handed a job posting?
The law does not contain a requirement to serve a notice of vacancies with a personal signature. In addition, in the Labor Code of the Russian Federation there is no prohibition on reporting vacancies to an employee who is on vacation or on "sick leave". Also, the Labor Code of the Russian Federation does not provide for a list of persons who are entitled, on behalf of the employer, to give the employee a written notice of the upcoming dismissal and vacancies.
Hence the conclusion: the corresponding notification can be sent to the employee at the address of his location by any accessible way - by registered mail, courier delivery, etc. The only thing is to get proof that the notification was sent and received. This conclusion is confirmed by the Samara District Court of Samara.
9. What should a job offer look like?
The Labor Code of the Russian Federation does not indicate the form of the offer of vacancies - written or oral. However, a written one will be most preferable, as it will be possible to prove in court the fact of a job offer. Moreover, some judges are quite strict about the content of a job posting.
Arbitrage practice
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Thus, in the decision of the Mineralovodsk City Court of the Stavropol Territory dated March 28, 2012, the judges noted that a leaflet with vacancies without specifying to whom and for what it was given cannot be considered a notification due to a violation of GOST 6.30-2003 “Unified Documentation Systems. Unified system of organizational and administrative documentation. Requirements for paperwork” (adopted and put into effect by the resolution of the State Standard of Russia dated 03.03.2003 No. 65-st).
Apart from required details document, as well as directly the list of vacant positions (professions), we recommend that you indicate the responsibilities for vacant positions (professions), wages, requirements for qualifications and health status, so that the employee can objectively assess their strengths and capabilities in relation to the vacant position. All this information about vacancies can be registered as in separate document, and, for example, in the notice of the upcoming reduction.
Footnotes
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The absence of a definition of a vacant position in the law causes controversy in practice. In some cases, judges consider only vacant jobs, that is, positions that are not occupied by anyone, as a vacant position or job. Other judges believe that positions should also be offered in which the employee is temporarily absent, but the workplace is retained by him. That is, we are talking about temporarily vacant jobs. However, this position is erroneous. Positions that are reserved for temporarily absent employees are not vacant. The employer may, but is not required to, offer them to employees in the order of transfer. A vacant position is a position that is indicated in the staff list and is free, that is, an employment contract for the replacement of which has not been concluded with the employee. An employer is not required to offer a transfer to a temporarily vacant position.
Staffing: we solve emergency situations
Here is an example of a simple and accessible declaration. Soyuz LLC is looking for a web designer. Responsibilities:
- regular filling and updating of site content, active participation in their development;
- editing of graphic and tabular elements.
Requirements:
- higher or incomplete higher education, preferably profile;
- package knowledge Microsoft office and the Internet;
- knowledge of HTML, Adobe Photoshop;
- initiative and kindness.
- work schedule: Monday - Thursday from 8.30 to 17.30, Friday from 8.30 to 16.15, Saturday and Sunday - days off;
- full social package, additional medical insurance;
- large convenient parking.
What is a vacancy
To account for the term staffing can be supplemented with the column "Work period" or reflect this information in the column "Note". Personnel changes that must be reflected in the staffing table Type of changes Written notification of employees We introduce new positions, structural units Not required Change salaries, remuneration system Necessary Rename positions Necessary Rename structural divisions Necessary if the name of the division is specified in the employment contract Transfer the employee to another department Transfer the employee to another position Necessary We reduce staff Necessary We abolish vacant positions Not required How to make changes to the staff list By decision of the employer, the structure of the organization, the composition and number of employees, salaries by position, etc. may change.
These events affect the staffing of the organization.
Production calendar
Info
Under such circumstances, the panel of judges concludes that the positions of combination were vacant and should have been offered to the plaintiff upon dismissal. According to the provisions of Art. 60.2 of the Labor Code of the Russian Federation, with the written consent of the employee, he may be entrusted with the performance during the established working day, along with the work determined by the employment contract, additional work in another or the same profession (position) for additional payment.
When performing additional work on the terms of combining positions, unlike part-time employment, the conclusion of another employment contract is not required.
Job titles in the staffing table
Changes are made in one of the following ways: - by order to amend the current staffing table. At the same time, the planned changes are listed in the text of the order itself; - an order approving the new staffing table.
Employers choose the option to update the document themselves. If the adjustments are small, and personnel records are kept in automated system, it is more convenient to make changes by order, when large-scale personnel changes- approve the new timetable. The order to amend is drawn up in any form. It indicates the reasons for the adjustments and their essence, the date of entry into force, which may not coincide with the date of issue of the order.
Example CEO LLC "Aristotle" Maria V.
Career
According to the provisions of Art. 60.2 of the Labor Code of the Russian Federation, with the written consent of the employee, he may be entrusted with the performance during the established working hours, along with the work determined by the employment contract, additional work in another or the same profession (position) for additional payment. When performing additional work on the terms of combining positions, unlike part-time employment, the conclusion of another employment contract is not required.
When combining positions, the employee occupies only one position, while the combined position, in which the employee performs labor duties for a certain time, remains vacant. According to the orders available in the case, employees who held positions in combination received an additional payment for an increase in the volume of work (additional work).