The right to a workplace: what categories of workers cannot be fired during staff reductions? Downsizing: detailed instructions for use If an employee is being laid off

During a number of measures to reduce the state or number of employees, many issues may arise that need to be addressed in accordance with the procedure and conditions for the dismissal of employees. The most common questions are: how is the dismissal of an employee due to a layoff carried out? How and what payments are made? What is the role of elected trade union bodies?

Dismissal of an employee in connection with a reduction in position occurs in a certain order

Indeed, layoffs due to redundancy are a complex process that occurs in a certain order. So, the main issues of downsizing and laying off employees.

Who determines the size of the staff and the structure of the organization?

According to general rules, staffing and structure of the firm are determined by the organization itself. Therefore, the staffing table can often change depending on the wishes of the manager, the need to reduce costs or increase profits.

When resolving claims for the reinstatement of employees with whom the employment contract was terminated due to changes staffing, the reasons for the reduction of the position are being clarified in court.

The same applies to whether the downsizing order has been followed. Otherwise, the employee has the right to sue the employer.

The fact that the redundancy procedure was carried out in accordance with all the rules will be confirmed by the relevant documents:

• chief's instructions)
• orders)
• TD termination notice)
• staff listings)
• documents on the reduction of the wage fund.

This data will allow the court to figure out whether there really was a reduction in staff and what opportunities were provided to employees (vacancies or transfers, generous compensation payments etc.).

Who is fired first in the event of a layoff?

When a decision is made to reduce the number or staff of employees, before reaching the working people, it is necessary to liquidate vacancies. Only after that it is possible to make reductions at the expense of employees.

It should be noted that the candidacies of employees to be dismissed for reasons of staff reduction are determined by the administration with the participation of the trade union. The rules for dismissing an employee from a position must be carried out exactly in accordance with the legislation and the Labor Code of the Russian Federation. Each candidate must be considered individually. In this case, the opinion of the structural unit in which the employee works should be taken into account. Not everyone has priority to stay at work

According to article 34 of the Labor Code, they are left at work when the number of employees is reduced from more than highly qualified and labor productivity.

Business and personal qualities. The right to evaluate business qualities employees is provided to the head of the organization. At the same time, various information is taken into account that characterizes them both from a professional and personal side:

• education documents,
• work experience data
• work experience in this specialty,
• quality of performance of official obligations,
• belonging to a certain qualification group,
• promotions, awards, etc.

Also, the manager has the right to appoint a human resources specialist to assess employees. This will allow you to judge employees unbiasedly and choose from the point of view of professionalism, and not personal preferences. So, the priority is given to such categories of workers:

• employees with families)
• persons with dependents)
• family breadwinners)
• long-term employees in the organization)
• employees with work injuries received in this production)
• employees who improve their skills and work at the same time)
• WWII invalids)
• inventors)
• military family members)
• people who had radiation sickness (victims of the Chernobyl accident).

These categories of people who have the pre-emptive right not to be fired upon reduction are absolutely equal. There are no other categories of beneficiaries provided by the state. However, if a beneficiary fits into several categories, he has more reasons to stay at work than others.

According to article 40, part 2 of the Labor Code of the Russian Federation, during the release of employees due to staff reduction, the benefits provided for collective agreement, if any. It should be noted that this right can be exercised after the administration has considered all preferences for staying at work.

The reduction of positions is carried out in order to optimize the work of the organization and more rational staffing qualified personnel. That is why the administration is trying to choose the best workers to keep them in the organization.

If there are grounds for layoffs and the order is signed, valuable employee can transfer to another vacant position. So, according to the decision of the Supreme Court of the Russian Federation, the administration, in the event of measures to reduce the staff, can carry out a rearrangement of employees within homogeneous positions in order to leave a more qualified specialist to work. However, since 1998, there has been a law according to which it is impossible to dismiss a redundant worker if his position is retained in the staff list.

Who is not allowed to be fired?

The Labor Code considers layoffs to be completely legal. However, it should be noted that not all employees can be easily fired. Thus, pregnant women, as well as employees with children under the age of three, cannot be considered as candidates for dismissal. Also, employees with disabled children, single mothers with young children are not subject to dismissal. Some other categories of employees cannot be dismissed in accordance with Article 170 of the Labor Code of the Russian Federation. It does not matter whether these persons are on vacation or working during the downsizing period.

The exception is the complete cessation of the existence of the company. In this case, all employees are subject to dismissal, regardless of privileges and rights.

Dismissal as a result of a reduction in the number of employees or staff can be carried out if the employee to be dismissed does not have the advantage of being retained in the position in comparison with other employees, with the same labor productivity and qualifications. Also, an employee is subject to dismissal if he falls under a reduction if he cannot be provided with an alternative job.

Transfer or employment opportunities

After the candidates for reduction have been considered, the list of employees to be laid off has been drawn up, the administration must offer the employee to take another vacant position during the reduction. According to Article 40 of the Labor Code of the Russian Federation, an employee must be offered another job at the same time as the notice of being laid off and the upcoming dismissal. Also, no later than a couple of months, the administration is obliged to bring to the attention of the employment service data on the dismissal of employees. In this case, it is necessary to submit data for each employee indicating:

• specialties,
• professions,
• qualifications,
• position held,
• payment amount.

Simultaneously with the employment center, it is necessary to notify the trade union of the mass reduction.

The form of the order to reduce the position must be prepared. After that, all employees should be notified by placing an announcement on the stand. Whether employees are laid off or not, they need to be aware of the upcoming layoffs.

Each employee is warned individually against signature about the upcoming dismissal two months earlier. In case of refusal to sign a paper with a warning, the head or administration draws up an act with the signatures of witnesses, which will record and confirm that the employee is familiar with the document.

The administration can notify the employee of the upcoming calculation during his illness or vacation, however, the employee can be fired only after he returns to work. After the notice of dismissal, the specialist is obliged to work for the remaining two months in compliance with all internal regulations. In case of violations labor discipline an employee may be dismissed earlier under an article “unfavorable” for his future career.

The terms of the notice of dismissal are set in the interests of the employee, so he can apply to the administration to shorten the term if he has found another job and wants to take on his new duties. If the administration does not insist that the employee continue to perform his duties, he can be calculated ahead of time on an application with the provision of all guarantees and compensation payments.

It should be noted that the application for early dismissal must be drawn up correctly. Otherwise, the employee may be fired own will and is deprived of all the privileges that are due to him.

If the dismissal of an employee on vacation falls on the day of his absence, then he may be dismissed later, when he arrives at work at the end of the sick leave or health leave.

Job redundancy

If the existing positions are not offered upon dismissal, it is imperative to draw up an act indicating the absence of alternative vacancies. Otherwise, the employee can challenge the legality of his dismissal in court. It is also necessary, if possible, to provide a transfer to another city for a similar job or offer all vacancies, including those below qualification level employee or have lower pay.

Only after the employee refuses to take advantage of the boss's proposals, it should be calculated. It should also be noted that the employee should be provided with all vacancies to avoid problems in the future.

The best option for dismissal in case of reduction is a transfer to another place. When the position is reduced, the conditions of dismissal do not allow the employee to leave, because otherwise he will have to take the place of another person, which is not lawful. Although earlier the law provided that the administration could leave employees with the highest qualifications and labor productivity in the organization and form a staff from them, now these actions are illegitimate. Employees must be aware of all staffing changes.

If there is no translation

The rules for dismissing an employee from a position must be carried out exactly in accordance with the legislation and the Labor Code of the Russian Federation

It is possible to dismiss under article 33 of the Labor Code of the Russian Federation only if it is impossible to transfer or if the person does not agree to work elsewhere. The contract was concluded between the employee and the organization, so all vacancies that are available in the organization, and not just in structural unit where the employee worked.

It is worth noting that the employee does not have the right to demand any position that interests him in this organization. During the conclusion of the TD, he entered a job corresponding to his education and qualifications. Based on this, he can be offered a position corresponding to qualifications.

In the absence of suitable vacancies, the administration is obliged to present the employee lower paying job by specialty. The management is obliged to select and offer positions to the dismissed employee during the entire period from the notice of the reduction to the day of calculation. In the event that the case comes to legal hardships, and it turns out that the administration did not offer the employee an existing suitable vacancy, the dismissal will not only be recognized as unlawful, but the organization itself will have to pay the plaintiff:

• court costs)
• compensation for moral damage)
• money that could be his salary in an unassigned position.

The role of the union

This body protects the rights of workers and controls the legality of the actions of the administration regarding it. Representatives of the trade union committee answer questions about job cuts and layoffs, and also check whether the article under which the employment contract is terminated in these cases is the same.

An employee can be fired only with the permission of the trade union body. This rule applies to union members. This body has no powers in case of dismissal:

• head (manager) of an organization or branch)
• deputy head)
• senior staff)
• elected workers)
• persons approved or appointed to office state power(management bodies) and public organizations.

If the trade union body does not allow the dismissal of the employee, then this decision is brought to the knowledge of the administration. Further, consultations of the trade union committee with the management of the company will be held, as a result of which either the employee will be left at work, or the case will be decided in court.

Last day of work

On the day of dismissal, the manager is obliged to issue a work book to the employee. The dismissed person must fill out the forms, which will later be transferred to the archive. In the event of a delay in the issuance of labor due to the fault of the administration or the boss, the employee will receive compensation in the amount of the average earnings for the time of "truancy", in accordance with articles 39, 98, 99 of the Labor Code of the Russian Federation.

If the delay in issuing a work book (the fault of the employer) is associated undesirable consequences for an employee, he has the right to demand from the administration of the institution to change the date of dismissal. In case of refusal, the employee may apply to the court.

Compensation

What is paid upon dismissal to reduce the position? First of all, as in any case of layoffs, settlement must be paid. They consist of the following components.

All guarantees and compensations are provided to the employee in accordance with applicable law. In this case, the reason for the reduction does not matter at all:

• decrease in the number of employees)
• downsizing)
• there was a reorganization as a result of a merger of firms or amalgamation of branches, etc.

In the event of termination of the contract between the employee and the manager due to the reduction of the position, the employee is entitled to the following payments:

• preservation average salary for the period of employment (no more than two months))
• salary for the third month without work, in case of non-satisfaction of his request for a job search by the employment service)
• other financial compensation.

Payment of settlement money is carried out at the place of employment. It is provided upon presentation by the employee. work book. In order to receive material payments in the future, it is necessary to register with the employment service as temporarily unemployed. If the break in work did not exceed three months, the employee retains the right to receive continuous seniority.

Form of notice of reduction of position is a mandatory element of any reduction

If a laid-off worker applied to the employment service on time, he can count on extending his seniority in the future, for the period of receiving a scholarship or unemployment benefit when performing paid public works.

Keeping the length of service uninterrupted is important for a person who wants to find a job. In addition, it is this indicator that will determine the amount of payments in connection with unemployment. This can help in the future with wages (percentage allowances, lump sums based on seniority, etc.).

If a dismissed employee, when applying to the employment service, was refused assistance, then he can be assigned an early pension (only with his consent). It is assigned on the condition that the employee has the required length of service for retirement due to old age (this also includes receiving preferential payments as an addition to the pension). The employee is guaranteed, even after dismissal, the preservation of the queue for housing and the opportunity for his family to use children's and medical institutions.

Statutory leave or its material compensation

It should also be remembered that in the event of dismissal due to a reduction in position, the employee has the right to spend his legal leave. If the director cannot provide the dismissed employee with leave, this will have to be settled financially. So, the first thing to do is to provide compensation in the form of a material bonus corresponding to the size of vacation pay.

During the vacation period, “healthy” allowances are accrued, so the employee can receive partial cash payments. It should be noted that dismissal implies unemployment in the future, therefore material compensation in the amount of average wages for two months will also be provided.

• HR records management

Keywords:

1 -1

02.04.18 108 316 8

Step-by-step instructions for leaving work

For three months I have been doing nothing and getting paid for it. For some it's a dream, for me it's a forced necessity.

Albina Hasanshina

got laid off

In September 2017, 20 of my colleagues and I received written notices of upcoming layoffs. I heard that there were compensations for layoffs, but at the time I didn't know what they were.

I was not too lazy to figure it out, so for another three months after the reduction in work, I was paid a full salary, and after that - unemployment benefits.

Everything according to the law

The events of this article are based on legal reduction. This is not always the case.

Sometimes employers use abbreviations to fire employees without objective reasons. At the same time, they reduce one position and come up with another - formally new, but with the same responsibilities. After that, they simply hire the employee they like best for her. For example, pregnant women, women on maternity leave or single mothers are fired so often because they do not want to pay them maternity leave or hire temporary employees in their place. This is illegal, and if the case goes to court, the court will usually side with the employee.

With a legal reduction of an employee, it also happens in different ways. If the employee received part of the earnings in an envelope, then after the reduction in payments there will be less salary. And if he was not registered with the state, then when he is reduced, they will simply say goodbye to him and will not pay anything.

All these are topics for separate articles. In my case, the salary was whiter than snow, and the department was actually reduced. If you do not, then you will have to act differently.

How is downsizing different from layoffs?

Downsizing is a process in which an employee is fired and his position is abolished. If, during a normal dismissal, another specialist is taken to the place of an employee, then this will not work if the staff is reduced.

My company shut down an entire department and warned them about it two months before layoffs. A week before the reduction, eight colleagues were offered to transfer to new department. Some employees are given a preferential right to stay at work, and someone cannot be fired at all, even with a reduction in staff. I didn't get into them. Until November 20, I worked as usual and was preparing for a redundant layoff.

Features of dismissal by reduction

There are some special cases when it is impossible to reduce workers.

Employees on sick leave. It is impossible to reduce a person whose sick leave is not closed.

The dismissal of an employee on staff reduction refers to dismissal at the initiative of the employer. Dismissing an employee during his period of temporary disability at the initiative of the employer is prohibited, except when the organization is being liquidated.

Employees on vacation. The same situation occurs when a person is on vacation. The employer is not entitled to own initiative lay off workers during the holidays.

Pensioners. The law does not establish special order layoffs for retirees. Therefore, the dismissal of a pensioner who has fallen under the reduction is drawn up according to the standard procedure: they issue an order to reduce, check if there are any prohibitions on dismissal or a preferential right to remain in the state, notify the employee, the employment center and the trade union about the reduction, before dismissal they offer suitable vacancies.

There is an important feature in relation to pre-retirees - people who are less than five years away from retirement. If you make a reduction in order to get rid of them, criminal liability arises: a fine or compulsory work.

Large families or single mothers. There is no direct ban on the dismissal of a mother of many children or a single mother, but it is imperative to check whether a mother of many children has children under three years old. And a single mother has children under 14 or a disabled child under 18. In these cases, the worker cannot be laid off.

If the children are older, such employees have the right of priority to remain at work. For example, when a position is reduced, but such a position is not the only one in the department. If a mother with many children or a single mother has the same productivity and qualifications as other workers and at the same time two or more children are dependent, she should be left.

Part-timers. There is no special procedure for reducing a part-time job. A person can combine positions in one organization or in different ones - this does not give him additional rights upon dismissal, but it does not mean that one of his positions must be reduced in the first place.

bypass sheet

A bypass sheet is a document that confirms that the company has no claims against the dismissed employee. When I got a job, the warehouse gave out furniture and overalls, the office - a computer, the system administrator created account. To protect yourself from unnecessary spending and disclosure trade secret, the employer prescribes in the employment contract that the employee himself is responsible for the condition of the property and the consequences of the dissemination of information.

The employees of the office and warehouse checked that I did not damage the property, the IT department deleted the account, and the certificate was taken away at the pass office. Each employee put a mark on receipt and signature on the bypass sheet. Then I took my workbook.

On the day of dismissal, the personnel department makes an entry in the work book about the reason for termination employment contract. In my case, it was "reducing the staff of the organization." Under the record of the personnel officer, I signed that I had read the order and agreed with the changes made to the work book.

final settlement

On the day of dismissal, employees are paid wages for the days worked in the current month, compensation for unused vacation and severance pay in the amount of the average monthly salary. Money is credited to the card in one amount.

To figure out how much and for what I was paid, I turned to the accounting department. I was given a pay slip.

What was on the payslip

Salary

50 731 Р

severance pay

62 475 R

Compensation for 16 days of vacation

23 942 R

Severe climate surcharge

3922 R

141 070 Р

Along with the pay slip, I immediately asked for three references.

Help 2-NDFL for the current year to receive a tax deduction for education, treatment or an apartment. This certificate is also needed by a new employer to see if a person is entitled to standard deductions, for example, for children.

Salary certificate for the last three months. It will be needed when calculating benefits at the employment center.

After bookkeeping, I went to the local employment center.

Employment Center

The employment center is a place where laid-off employees are helped to find work and not starve to death while searching. It looks like this: after being fired, you register at the center, come every two weeks, get a list of vacancies, choose one or two from it and go for an interview. And so on, until you find a new job.

As long as you don't miss a visit and are looking for a job in good faith, the employment center makes sure that you receive compensation. If you have been made redundant, your former employer pays them for the first three months in the form of an average salary. After that, the state pays unemployment benefits.

The employer issues the first compensation at the time of calculation, the second - two months later, the third - a month later. You will receive the second and third compensation only if you have not yet found a job: formally, this means that there is no entry in the work book.

To receive compensation for the third month, you need to have time to register with the employment center within two weeks after the reduction. If you come after 14 days, the service will register the application, but according to the labor code, the employer will not be able to pay compensation for the third month. In addition, in order to receive the last part of the compensation, the employer needs to bring a certificate from the employment center about the decision to keep it for you.

Earnings for the third month is an exceptional payment, for which the employer needs iron reasons. It is paid if the employee is the only breadwinner in the family or, for example, supports elderly parents.

At the employment center, your inspector helps you. When you come for the first time, he checks your documents, sets up a file and offers the first vacancies.

To register at the employment center, take your passport, insurance certificate, TIN and diploma with you. If you don't have a diploma, any educational document will do. And also take a work book, a certificate from your previous place of work on average earnings for the last three months and a card to which compensation will be transferred - you will be asked for its details.

Within 10 days after registration at the center, you will be given the status of unemployed. From this point on, in addition to help in finding a job, you can consult on starting your own business, participate in paid public works, ask for financial assistance, get early retirement and undergo vocational training. All this is at the expense of the state.

If you start receiving any money other than unemployment benefits or compensation from your former employer, the job center stops all payments and removes you from the register. This can be not only a new job, but also your own business, work under a civil law contract, study with a scholarship, pension, and even public Works.

Payments will also stop if you miss your scheduled appointment without a good reason. Good reason illness or death of relatives is considered. To prevent the employment center from deregistering you, call your inspector immediately after the doctor, and on your next visit, bring him a sick leave or a copy of the death certificate.

If you receive money for freelancing - payments will stop

The job center is your friend in need. If you are no longer in trouble, there will always be someone who needs money more. If you try to deceive the center and do not say that you have started working, it will find out about it upon request to the Federal Tax Service and the pension fund, and the entire amount of benefits will have to be returned.

I registered with the employment center the day after my dismissal. On the same day, the center took up my employment.

Jobs

Everyone who is registered at the employment center is selected for a job based on the level vocational training, conditions of the last place of work, health status and transport accessibility. The specialists of the center also try to take into account the average salary for last place work if it was above the subsistence level. A certificate from the accounting department with income for the last three months is useful here. If there are no suitable vacancies, and also if you are looking for a job for the first time or after a year break, the specialist will offer any paid option.

Each visit, the inspector printed out a new list of vacancies for me. The journalist or correspondent that I previously worked for was not required anywhere, other vacancies also did not appeal to me. But I still had to choose some vacancies and go to interviews. As explained to me at the employment center, if the dossier is empty, I will not be issued a certificate and I will not receive the third average monthly salary from my former employer. I was advised to go to interviews at least once every one and a half months.

Opposite the selected proposal, I put a tick and signed, after which I was given a referral for an interview.

interviews

Within three days of receiving your referral, you must be interviewed by potential employer. The direction contains the name and address of the company, as well as the phone number and position of the employee with whom to communicate. According to the results of the interview, the employee of the company writes down his decision directly in the direction from the employment center. If it is negative, he also explains the reason there.

If the interview was successful, but you did not like the working conditions, then you also write the reason for the refusal in the direction. This could be, for example, a low salary, an inconvenient schedule, or a high workload. However, it is better not to abuse this: after two such refusals, the employment center will not issue a certificate or stop unemployment payments for three months.

The only situation where you can refuse to work and this will not affect your file in any way is if in your previous job you received more than the living wage, and in your new job the salary is below this level.

I was offered a job in a telecommunications company, in a bank and in an MFC. But I can't sell public institutions did not work and had no experience in the proposed vacancies. I brought the referrals with the reason for refusal by the employer, date, signature and seal on the scheduled visit to the employment center and handed it over for the dossier.

In parallel with visiting the employment center and bypassing its vacancies, I was looking for a job on my own - on Headhunter and in special channels in Telegram. I understood that the employment center would not find a job equivalent to the previous one, because there were no vacancies in the profession, and for the rest I did not have enough experience.

Every response phone call, I recorded the letter and the interview in a special plate - an individual plan for an independent job search.

Independent job search

An individual job search plan is a document that shows that a person is interested in getting a job as soon as possible and is actively searching. The plan assumes that the unemployed, in addition to the vacancies offered by the employment center, will go to other interviews.

It is not necessary to look for a job on your own, but the inspectors of the employment center strongly recommend this to anyone who wants to receive a third part of the reduction payment from the former employer.

The fact is that the certificate is issued by the lawyers of the employment center on the basis of the dossier. From the dossier, the lawyer should have the impression that you were actually looking for a job, and were not marked in the employment center for show. There are no formal criteria in the law according to which a lawyer must issue this certificate to you, so the decision is left to his discretion.

The favor of a lawyer can be achieved without an independent job search, only through referrals from the employment center. But if the offered vacancies do not suit you, and employers want to hire you, you will have to refuse them yourself. Because of this, the lawyer may decide that you do not need a job and not issue a certificate.

Therefore, it is safer to look for work yourself and record the results in individual plan, and in directions from the employment center, go only to those interviews that are really interesting to you or where the employer is likely to refuse you himself.

An individual plan is issued at the employment center. This is a table in which you need to record the date, stages of passing and the result of the interview.

Independent job search does not replace scheduled visits to the employment center. If you miss a visit, then even three completed sheets of an individual plan will not help and the unemployed person will be removed from the register.

Total: compensation from the employer

I did everything on time, so in three months I received 188,000 rubles from the employer.

My former employer paid me the first compensation in advance upon dismissal. Two months later, I came to the accounting department for the second allowance. I took a work book with me, in which the accountant checked the absence of records of a new job.

A month later, before the last payment, I needed to get a certificate from the employment center. To do this, I brought to the center a completed individual plan for an independent job search.

188 000 R

for three months I received from the former employer as compensation

Three referrals from the center and four interviews from an independent search were enough for the specialist. I was referred to a lawyer, who also checked whether I visited the employment center in a timely manner and whether I had any income on the side. I was given a certificate, and I went to the accounting department to receive the last compensation.

My employer was responsible and did everything according to the law. You can't blame the company for having to cut staff. Sometimes this helps to maintain solvency in front of other employees: pregnant women, sole breadwinners, large families. But there are companies that do not pay compensation in full and on time in the hope that employees do not know about the payments and will not demand anything. Or there is such a mess in the company that there is no time for compensation. In this case, you should not wait, but demand your own: first politely, then in court.

I know of a case where an employee was made redundant and compensation was paid only for a month. He didn't know what was due for two more. And he would not have known if his wife had not figured everything out herself. Then they wrote a polite letter to their former employer, but they were already mentally preparing for the trial. The letter was written without a lawyer - they wrote it in their own words. This helped almost instantly: the former employer immediately requested details and paid all the money a week later. They only asked for a certificate from the employment center.

What threatens the employer in case of non-compliance with the law

If the employer does not meet halfway, you can demand payment, forfeit and moral damage through the court. It's practically a win-win case. Wrongful dismissal can also be challenged in court.

You can file a claim with the district court at the address of the employer, the place of your residence, or the place where you actually worked. An employee can, within a month from the day he was given a copy of the dismissal order, the day the work book was issued, or the day he refused to receive the dismissal order or work book, file a claim for reinstatement at work and the recovery of average earnings for the time of forced absenteeism.

As a result, the court will oblige the employer to reinstate an employee who was dismissed in violation of the procedure for dismissal due to a reduction in staff or headcount in his previous job and recover in favor of the employee average earnings during the forced walk. If the employee does not want to be reinstated, the court will oblige the employer to pay money for forced absenteeism and change the grounds for dismissal to dismissal of their own free will.

Repeated violation will cost more:

1. head - 10,000-20,000 R or disqualification for a period of one to three years;
2. IP - 10,000-20,000 R;
3. legal entity - 50 000-70 000 R

Repeated violation is also more expensive:

1. head - 20,000-30,000 R or disqualification for a period of one to three years;
2. IP - 10,000-30,000 R;
3. legal entity - 50,000-100,000 R.

Unemployment benefit

When compensation from the former employer ends, the employment center begins to pay unemployment benefits. Payments are due to everyone who is registered and worked for at least 26 weeks before dismissal.

The law "On Employment in the Russian Federation" spells out how unemployment benefits are calculated. Payments depend on the average salary for the last three months at the previous place of work. For example, the first three months after receiving the last compensation from the employer, the amount of the benefit is 75% of the previous salary, then another 4 months - 60%, and then - 45%.

But there is a clause in the law that payments cannot exceed the maximum amount of unemployment benefits in Russia. In 2018, this is 4900 rubles.

4900 R

the amount of unemployment benefits in Russia. There are also regional allowances, but not everywhere

In some regions, the benefit is slightly more than the maximum amount, because it is also multiplied by district coefficient. It depends on the climatic conditions in which a person lives and works. The more severe the weather, the higher the surcharge. For example, in Moscow and St. Petersburg there is no coefficient, but in the polar regions of Yakutia or Chukotka it is equal to two. I live in Yekaterinburg, here the coefficient is 1.15. Therefore, my unemployment benefit is 5636 rubles a month.

Unemployment benefits have not yet begun, but knowing their size, I understand that it will be difficult to live on them. I have not yet found a job, but I decided to deregister at the employment center and try myself as an individual entrepreneur.

What to do when cutting

1. Make sure the company has no claims against you. Hand over everything that is written to you, and coordinate with the responsible persons. This will save you from litigation with the employer.
2. Get the necessary information immediately after dismissal. It is better to keep them at home than to ask the accounting department every time.
3. Within 14 days after the dismissal, register with the employment center. This way you can claim compensation from your former employer for the second and third months.
4. Strictly follow the rules of the job center. The first rule is not to talk about the employment center. Sorry. Of course, the first rule is to come on the appointed days, go to interviews, look for work on your own and keep the employment center up to date.

The crisis in the country due to the political situation has led many employers to the need to reduce staff costs. And, as a result - to the reduction of the workers themselves. In this situation, questions invariably arise related to the execution of documents, with the due payments and compliance with the requirements established by law.

How should the reduction procedure take place, and what are the rights of the reduced employee?

What does the Labor Code of the Russian Federation say about layoffs?

The right to determine the number of employees belongs exclusively to the employer. Moreover, the justification of the decision is not, according to the law, the obligation of the employer.
But it is obligatory to comply with the formal procedure (note 82, 179, 180 and 373 of the Labor Code of the Russian Federation).

In which case is the reduction illegal?

1. The absence of real grounds for the reduction (approx. "imaginary reduction").
2. Dismissal carried out without following the established procedure or with incorrect observance of the procedure.

Who is not entitled to be cut?

During the reduction procedure, certain categories of employees have a pre-emptive right - to be the last to be dismissed (Article 179 of the Labor Code).

Employees who are required by law to remain at work during staff reductions include:

1. Employees with 2 (or more) dependents (approx. family members supported by the employee).
2. Employees whose families have no other sources of income.
3. Employees who, in the process of working for a particular employer, received an industrial injury or an occupational / disease.
4. WWII invalids.
5. Employees who carry out advanced training in the direction of the employer inseparably from their work.
6. Employees who are on vacation - regardless of the type of vacation (the employment contract can only be terminated on the 1st day of the employee's return to work).
7. Future mothers.
8. Mothers who have babies under 3 years of age.
9. Employees who are temporarily unable to work (an employment contract can only be terminated on the 1st day of the employee's return to work).
10. Single mothers (a disabled child under 18 or a child under 14).
11. Employees raising children without a mother (a disabled child under 18 or a child under 14) are guardians.
12. Employees under the age of 18 (in the absence of the consent of the guardianship authorities).

In a situation where an employer dismisses a future mother or a single mother without knowing about these facts, the dismissal is declared illegal through the court.

Reasons and grounds for reducing the rate of an employee of an organization

Of the main reasons for the possible reduction of staff allocate liquidation company, changing the type of its activity, financial difficulties, etc.

To date the most important reason - financial difficulties (the reason is the political situation in the world, economic difficulties). Downsizing is becoming the only option for many companies to “stay afloat” and avoid bankruptcy.

The Labor Code of the Russian Federation clearly defines the grounds for layoffs:

1. Liquidation of the enterprise.
2. Termination of the activities of the firm (organization) IP.
3. Reducing the number/staff of employees. This clause is valid only if the position of the employee is liquidated.
4. The presence of employees with higher qualifications, labor productivity, etc. (evidence of qualifications must be confirmed by relevant documents).

It is worth noting that the order to reduce staff should indicate the real grounds for the reduction, according to which it is carried out.

How is the reduction of an employee carried out?

The entire downsizing procedure is divided into several stages:

Issuance of an order to reduce staff and change the staffing table

It defines a list of positions that are subject to exclusion from the staff list with the corresponding dates, as well as a list of persons who will be responsible for the reduction procedure (notifying employees, etc.).

Creation of a commission of competent specialists

She should deal with the issues of downsizing, and setting deadlines for each stage of the procedure.

Notification

Preparation of its form with full information on the reduction of positions, familiarization of employees to be dismissed with notifications against their signature 2 months before the scheduled date of termination of the contract. Already at the time of preparation of this notice, the employer must be aware of the presence / absence of the employee's preemptive right.

Jobs

The employer offers employees to be laid off all positions that correspond to their qualifications and state of health, and are available in the area where the employee performs his work duties. An employer can offer a free vacancy in another area (approx. outside the boundaries of a settlement / point) only in a situation where this is provided for by the employment contract.

It is worth noting that the dismissal of a downsizing employee is only permissible if the transfer this employee for other work available to the employer (and only with the written consent of the employee himself) is impossible (Article 82 of the Labor Code of the Russian Federation). All available vacancies must be offered to the employee, both upon delivery of the notice of reduction, and up to the moment of termination of the contract). If vacancies are not provided, as well as if measures are not taken for the further employment of the employee, the dismissal will be considered illegal, and the employee himself must be reinstated in his original place.

Employment center

The employer is obliged 2 months before the termination of the contract with the employee (not less) report the reduction of the relevant position to the employment center. With mass reduction - for 3 months (at least).

This notice to the CZN must contain all the necessary data on the laid-off employees, including the conditions for remuneration for their work (profession and specialty, position held, qualification requirements, etc.).

Note: the failure to notify the central health center about the dismissal of an employee is illegal, as well as the absence of a mark on the notification received by the central health center (that is, the notification was sent to the central health center, but the employer does not have a mark about this).

union

The elected body of the trade union organization is informed about the future reduction of staff 2 months before the appointed date of termination of the contracts. At mass layoffs- for 3 months.

Dismissal

The publication of the corresponding order should be carried out after the expiration of the warning period for a future reduction, with the subsequent execution of all necessary documents and familiarization of the employee with them against his signature and exclusively within the time limits established by law.

After that, the employee is issued a work book, all other Required documents, as well as a full settlement (on time).

severance pay

Compensation is paid by the employer after the termination of the contract, also strictly within the time limits established by law.

Samples and forms of notifications or warnings

According to Art. 180 of the Labor Code of the Russian Federation , notification of the employee about the upcoming reduction is carried out by transferring the relevant document with a copy of the order in person or by mail 2 months before the immediate dismissal and with a mandatory offer of other vacancies for the entire period until the moment of dismissal.

Sample notice:

OOO "Petrov and K"
Forwarding driver Ivanov A.V.
The date_____

NOTIFICATION.

Dear ________ (name of the employee), We inform you that on "__" _____ of the year (date) it was decided to reduce the number of employees of our company in connection with ______________ (reason for reduction) Order No. ____ dated "__" ______ year (date ). In accordance with Article 180 of the Labor Code of the Russian Federation, Petrov and K LLC warns you of the upcoming dismissal on "__" _______ _____ of the year (date) on the basis of clause 2 of Art. 81 of the Labor Code of the Russian Federation (_________ reason for staff reduction). In connection with the upcoming dismissal, Petrov and K LLC offers you a transfer to another job for the following positions:

____________ (position) _______ rub. (salary)
____________ (position) _______ rub. (salary)

If you do not agree to the transfer, you will be fired on "__" ______ _____ of the year (date). Upon dismissal, you will be provided with compensation established by Article 178 of the Labor Code of the Russian Federation and other norms of the current legislation of the Russian Federation.

General Director M.A. Klyuev.

I have read the notification and job offers in the order of transfer to other positions and received the 2nd copy.
________ (employee's signature) "___"________ ____ (date)
_____________________ (employee's opinion about the transfer to another position)

What compensations, allowances and payments can be expected for former employees of the enterprise?

The schedule of payment of benefits and its amounts are regulated Chapter 27 of the Labor Code of the Russian Federation , which indicates the guarantees and compensation due to employees when reducing the number of employees, as well as the categories of citizens who have a preemptive right to remain at work when the number of employees is reduced.

official dismissal day This is the last working day of the employee. The employer, regardless of the reason for the reduction, is obliged to pay the employee monetary compensation for unused vacation (or holidays), severance pay and other monetary debts, if any.

As for the average earnings, it is calculated taking into account the salary that has already been accrued to the employee, as well as the time that the employee worked in fact, including the day of reduction.

How much should be paid upon reduction, what compensation should the employee expect upon reduction?

According to the current Labor Code of the Russian Federation, in case of reduction, an employee has the right to:

1. severance pay. Size - average monthly earnings. 2-week earnings - for an employee engaged in seasonal work.
2. Saving the average monthly earnings until the employee gets a new job (limited to a certain period).
3. Other payments and compensations, in accordance with the employment contract.

How many months or salaries are redundancy benefits paid?

Saving for an employee average monthly salary until employment
limited to 2 months special conditions- up to 3-6 months).

Payment procedure:

1. Benefit for the 1st month: payment is made together with the calculation directly upon dismissal. That is, severance pay "in advance" for the 1st month.
2. Benefit for the 2nd month: payment is made after the full end of the 2nd month after the employee provides a work book without employment records for the past period. When an employee is employed, for example, in the middle of the 2nd month, the payment is made according to the period in which the employee was not employed.
3. Benefit for the 3rd month: the payment is made only in a situation where the employee did not find a job during the past 3 months after the dismissal, provided that he applied to the EPC (note at the place of registration) within 2 weeks after the dismissal and was registered in this EPC. In this case, the EPC issues an appropriate certificate to the employee, which is presented to the employer in order to receive benefits for the 3rd month.
4. Benefit for 3-6th month: payment is made only if the employee worked in the Far North. The payment of benefits for this category of employees is handled (starting from the 4th month) by the EPC.

During the reduction, they did not pay the entire salary, sick leave or vacation pay - what to do?

All payments (with the exception of benefits that are paid after the dismissal) must be made on the day the employee leaves the enterprise. Withholding payments is illegal. All payments are made in accordance with the employment contract and the legislation of the Russian Federation.

If payments have not been made (or have not been made in full), then the employee has the right to apply to the court to recover the unpaid salary (provided that it should be paid), as well as compensation for...

1. Unused vacation.
2. Unpaid sick leave.
3. Moral injury.

As well as the employee has the right to demand through the court ...

1. Reimbursement for legal fees.
2. Late payment interest.
3. Compensation for lost earnings due to a delay in the work book, due to an incorrect entry into it of the reason for dismissal, due to not legal dismissal/translation.

You can also apply to the prosecutor's office with a statement (simultaneously with an application to the court). If the frightened employer still pays the salary (and other due compensation), then the claim can be simply abandoned. And the fee for labor disputes falls on the employer.

The limitation period for such a statement (Article 392 of the Labor Code of the Russian Federation) is 3 months from the date of dismissal.

On a note:

All payments and compensations are accrued according to the official salary. That is, it makes no sense to count on an average monthly severance pay of 30 thousand rubles if your “white” salary is 7,000 rubles, and the rest is paid “in an envelope”.

What to ask the employer for layoffs - useful tips

The procedure for issuing documents to a dismissed employee must be followed, as well as the reduction procedure - strictly and clearly, regardless of the position and reason for dismissal. The documentation procedure established by law applies to correct design personal card of the employee, as well as maintaining accounting journals.

What documents is the employee entitled to issue? (the list includes those documents that the employee may need in the future)?

1. Employment book (with its proper execution) - even if it is issued at the expense of the employer.
2. Employment contract (Article 67 of the Labor Code of the Russian Federation) + all copies of additional / agreements to it.
3. Student agreement (Article 200 of the Labor Code of the Russian Federation).
4. Pension Certificate.
5. Medical book.
6. Document on education (with an appropriate agreement based on this document).
7. Information about taxes paid.
8. Certificate of accrued/paid insurance premiums.
9. Information about periods of temporary disability.
10. Income certificate to be submitted to the employment service.
11. Copies of orders (Art. 62, 84.1 of the Labor Code of the Russian Federation) on hiring, dismissal from work, on transfer to another job and other orders (on additional work, work on weekends, on certification, etc.). Available at the request of the employee. A copy of the dismissal order is issued on the day of dismissal in without fail(Article 84.1 of the Labor Code of the Russian Federation).
12. Information about the period of work with the employer.
13. Pay slips (Article 136 of the Labor Code of the Russian Federation).
14. A document on additional insurance contributions to the funded part of the pension + on employer contributions in favor of insured persons (if paid). Issued together with a pay slip (Art. 9 FZ-56 dated 30/04/08).
15. Help 2-NDFL (Article 230 of the Tax Code of the Russian Federation). Provided at the request of the employee.
16. Certificate of average earnings for the last 3 months (clause 2, article 3 of law No. 1032-1 of 19/04/91). You will need it at the employment office.
17. Certificate of the amount of earnings for 2 years that preceded the year of termination of work or the year of applying for this certificate (Article 4.1 and 4.3 of the Federal Law-255 of 12/29/06). It will be needed to calculate temporary disability benefits, maternity leave, child care, etc.
18. Documents of personalized accounting, individual / information, as well as information about the length of service (labor, insurance). Issued at the request of the employee to establish a pension.
19. Characteristic.

This method of terminating an employment contract is especially distinguished from others. It can rightfully be called one of the most protecting the rights of the employee, not the employer. Although this option is the most laborious.

What the law says

A clear statement of the differences between downsizing and staff reduction the law does not.

In practice, there is only one difference: when the number is reduced, the position is not excluded from the staff list, only the number of persons occupying it changes (there were 5 managers, 2 will remain).

And if the staff is reduced, then the position is generally removed from the schedule (for example, the position of an accountant for materials is excluded, his duties will be performed by a payroll accountant).

Making changes to the staffing table

It is possible to make a reduction in employees only when the position is already absent from the staff list. Thus, you can make changes to the already existing schedule, or develop another one, taking into account all the changes.

The new version of the schedule is approved by the relevant order, which also explains why the need for reduction arose, in what period it will be carried out.

All employees of the company or enterprise should be familiar with this order.

Categories of persons who cannot be reduced

Reducing the number of employees or staff - This is entirely the initiative of the management of the company or enterprise. However, there are benefits for certain categories of employees. More on this will be discussed below.

In general, when reducing, a certain rule applies, which is reflected in the legislation: first of all, those employees who are less qualified and have low labor efficiency indicators are fired. In practice, these are most often employees with the least work experience.

The following employees enjoy the advantage of staying at work:

1. Parents of children with disabilities;
2. single mothers;
3. single fathers;
4. Being the only breadwinner in the family;
5. Injured or prof. diseases at this particular workplace;
6. Persons who received a disability in wars;
7. Heroes of Russia and the Soviet Union;
8. Victims of the Chernobyl disaster;
9. Victims of trials in Semipalatinsk;
10. Undergoing training for which they were assigned by the organization;
11. Employees who patented inventions (USSR legislation applies here);
12. Heads of trade union organizations;
13. Voted representatives of the collective who take part in the resolution conflict situations with guidance.

So, it is unacceptable to dismiss by reduction:

1. Persons, ;
2. An employee who has a sick leave;
3. Women who have children under 3 years of age.

This list is not exhaustive; the full list is given in the legislation.

Reasons for layoffs

The law does not directly establish the reasons for layoffs. It is the right of the employer to make a reduction if economic conditions require it. But if a dispute arises, the court has the right to check how good the reasons were, whether the reduction was reasonably carried out.

Typically, serious circumstances include:

• Inability to pay wages a large staff of workers;
• There are positions in the state that are not currently required;
• The production technology is changing, in connection with which some of the employees will not be in demand.

Conditions for dismissal

Their observance primarily concerns the employer, if he does not want to pay fines and compensation to illegally dismissed employees in the future.

• The reduction procedure must be followed strictly. Any deviation from it will entail a lot of negative consequences;
• The dismissal must be justified, and the court has the right to verify this;
• The Employment Service must be notified. Employers who ignore this condition often have to pay for forced absenteeism to dismissed employees, already by court order.

Order and procedure of reduction

Dismissal by reduction is carried out in the following order:

1. The company's management issues an order that it is planned to reduce. And not less than 2 months before the dismissal of employees. Each employee is warned about this personally, and gets acquainted with the order against signature;
2. Employees subject to redundancy should be offered other positions that match their qualifications. It is worth considering that this is done not once, but throughout the entire period until termination;
3. The trade union organization must be notified if it operates in the company. If the layoffs are massive, then reduction notice sent to the trade union for 3 months, as required in its ruling by the Constitutional Court of the Russian Federation;
4. In addition to the trade union organization, the employer also warns the employment service;
5. If the employee does not agree to any of the proposed vacancies, an order is issued to reduce the staff. The refusal of the employee must be in writing and signed by the employee;
6. With the consent of the employee, he may be dismissed before the expiration of the two-month period.

Worker's rights in case of downsizing

Many people are poorly versed in the norms of the law, which sometimes becomes convenient for dishonest employers. Taking advantage of this situation, they often violate the rights of employees and do not produce all due payments. To prevent this from happening, it is worth considering this point in more detail.

What does the employee have the right guaranteed to him by law:

• Severance pay in the amount of average earnings per month;
• To maintain this earnings until the moment of finding new work(time limit set);
• On compensation provided for by an employment or collective agreement.

From the above examples, it can be seen that the state protects citizens from layoffs at the whim of the leadership, makes it possible to challenge the dismissal in court if it is illegal.

How are redundancy payments made?

Table 1. Payment procedure

What to do if payments are not made in full

Important information : any delay in payments is a violation of the law!

If this order has been violated, any employee can apply to the court, demanding:

• Compensation for vacation that was not used;
• For sick leave that was not paid;
• For moral experiences;
• Compensation for expenses incurred in contacting a lawyer;
• All % that are due for late payments.

At the same time, you can contact the prosecutor's office. Usually scared employers pay everything. If this is the case, your claim can be dropped.

The statute of limitations for applying to these authorities is 3 months from the date of dismissal.

In any case, you need to carefully study your rights and learn how to protect them.

How to quit more profitable: by reduction or by agreement of the parties

Let's spend a small comparative analysis two types of layoffs. Since quite often employees ask such a question to specialists, it is worth paying attention to its consideration. And the results are presented in the form of a table.

table 2.Comparative analysis of types of dismissal

How profitable it is to quit, everyone decides for himself. You can rely on the criteria given in the table, you can not take them into account. In any case, you need to focus on the situation that has developed for a particular person.

Employer Mistakes

• Pressure on an employee to force him to quit of his own free will. Usually dictated by the unwillingness to make the payments required by law;
• Dismissal of an employee who is included in the preferential category (the categories are discussed above);
• Lack of coordination of the reduction procedure with the trade union (if any);
• Reduction without written notice.

This list contains the most typical and frequently occurring errors. Some of them are interpreted by the legislator as illegal dismissal and carries serious legal consequences for an irresponsible employer.

Conclusion

Summing up, we can say that layoffs due to redundancy can affect any person. No one is immune from this, especially if there is a difficult economic situation across the country.

In such a situation, it is important to know your rights and make sure that they are not violated. And if there are certain difficulties, seek help from competent specialists.

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 staff or the number of employees, and 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 staff 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:

1. 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. ).
2. 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, appellate 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).
3. 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

Download order form

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 remaining at work, on notification of layoffs of employees, a trade union, labor inspectorate, about offering 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.