Suspense production process for reasons beyond its control, this is a mistake of the head of the enterprise. This measure is forced and may entail various inconveniences, but it is taken in order to save jobs, and when the factors that caused it are eliminated, it completely allows the enterprise.
Regulation under the Labor Code of the Russian Federation
When such a non-standard situation occurs, the employee needs to know his rights and defend them if necessary. The rights and obligations of the manager during downtime are described in detail in the Labor Code of the Russian Federation.
Any aspects of labor relations are reflected in a special legal document called the Labor Code of the Russian Federation. Forced downtime due to the fault of the employer is described in detail in article 72.2 of the Labor Code of the Russian Federation, article 157 indicates minimum size wages of an employee in the event of a temporary suspension of the enterprise. In case of forced downtime of the enterprise due to the fault
employer, employee at least 2/3 of his average wages for the period of absence from work and the employer's failure to provide alternative opportunities to continue labor activity according to an employment contract.
This compensation is paid for the entire period of downtime. Compensation takes into account the average salary, which is calculated from the salary of the employee. In this case monthly salary divided by the number of hours he is required to work during this period, and multiplied by the number of hours of forced downtime. If the forced suspension of work duties has formed
due to the fault of the employee, such compensation is not paid.
What could cause this to happen?
There are several reasons that can cause a downtime:
Technological or technical reason
Most often, it is caused by the introduction of new equipment into production, which will require additional training and advanced training from personnel. Sometimes, suspension can occur on
due to the failure of critical components and mechanisms, or other equipment, which will entail the impossibility of the personnel to perform their duties until the equipment is fully restored.
For the technological factors of suspension of activities, the responsibility lies entirely with the employer, and during the onset of such a situation, monetary compensation is paid in the manner prescribed by law.
Organizational
Occurs when management decides to change the organization of the production process.
Economic
A common reason for downtime is caused by the financial distress of the enterprise. Very often, the direct fault of the employer in this type of suspension of production is not observed. Financial crises and sharp fluctuations in demand for a particular product can be the cause of this situation. Downtime of the enterprise may be caused by non-compliance by counterparties with their obligations.
Even if the forced suspension of the company's activities is caused by external factors, the responsibility, in any case, lies with the head of the enterprise. concept entrepreneurial activity involves doing business at your own risk, so workers' compensation must be paid in full in this type of business interruption.
Forced downtime due to the fault of the employer - the process of registration
In the event that an employee cannot perform his duties for reasons beyond his control, he is obliged to immediately notify his management. The authorities can be notified in writing or communicated orally. Regardless of the form of notification, you must report the exact time since the suspension of the workflow.
After the employer is informed of the forced downtime, he needs to issue an order in which the following points will be displayed:
- date of commencement of the suspension of work;
- positions and names of employees whose professional activity has been suspended;
- indicate the amount of wages for the period of downtime;
- indicate the person responsible for the forced downtime.
After issuing the order, the employer is obliged to familiarize each employee of the enterprise with this document.
Obligations of the employer in case of forced downtime
When the company is idle due to the fault of the employer, he has the following responsibilities:
the employer must acknowledge the fact of downtime, and issue an order in accordance with all the rules of the Labor Code of the Russian Federation;
the management of the enterprise must take all possible measures to stop the downtime.
the employer is obliged to provide an opportunity for employees of the enterprise to fulfill their labor obligations. If this is not possible, then management should monetary compensation employees in accordance with the Labor Code of the Russian Federation.
If the listed norms are not met by the management in full, the employee has the right to go to court to compensate for wages during the downtime of the company.
The nuances of payment - what and to whom?
In the event of downtime due to the fault of the employer, employees are paid compensation for the entire period of absence of work, in the amount of at least 2/3 of the amount average salary worker. During downtime, the employee must be at work, otherwise compensation will not be paid to him.
What to do if the employer does not pay the downtime period?
In case of non-payment of compensation by the employer, the employee may apply to the court to recover the compensation due to him by law. On the part of the management, in the event of a suspension of the enterprise, there may be cases of deception. When a moment arises when the enterprise does not function due to the fault of the employer, the management tries to send employees on vacation at their own expense.
If such violations of the labor code are discovered labor inspectorate, then the employer faces considerable penalties, as well as the danger of losing the right to engage in entrepreneurial activity for up to 3 years. In that case, the company's management does not pay compensation for the downtime period, the employee has the right to file a lawsuit for compensation for moral damage. The amount of such a claim will depend on the legislation and the wishes of the injured party.
What should an employee do during downtime?
The downtime period is not a vacation, and the employee must be at the workplace even if he fulfills his job responsibilities he can't due to the current situation. If an employee stays at home during the idle time of the enterprise, then this fact can be regarded as absenteeism, therefore, even if an agreement has been reached with the employer that employees may not be present at work during this period, this fact should be displayed in the corresponding order.
The employee should exercise caution in such a situation. Even if there is verbal permission from the management not to visit the place of work, it is necessary to demand legal registration such. Many dishonest employers, taking advantage of the legal illiteracy of their subordinates after the end of the suspension period, may accuse employees of violating labor standards in order not to pay monetary compensation for the period
just me.
If there is a position corresponding to his qualifications, then the employer may offer to transfer the employee to another department. With such a transfer, the level of wages should not decrease. It is possible to make a transfer without the consent of the employee, only in case of forced downtime for a period of not more than a month. If the suspension of the activity of the enterprise is possible for a longer time, then the employee in new department can only be done with his consent.
The time for which an employee is transferred to a new department should not be more than 1 year. After this period, the employer is obliged to return the employee to the previous place of work, or officially register in a new one.
Is sick leave paid for forced downtime?
During the period of forced downtime of the enterprise, sick leave benefits are not paid. If the employee’s period of incapacity for work began before the start of the suspension of activities, and ended during forced downtime, then he is paid sick leave, only for hours actually worked in production.
A similar situation with the payment of a hospital benefit can occur if a citizen’s incapacity for work arose during the downtime of the enterprise, and ended after the end of the downtime of the company, then in this case, benefits are also paid only for the time the enterprise is operating in standard mode.
Conclusion
During the period of suspension of the enterprise, employees lose 1/3 of their earnings, but if dishonest methods of financial relations with employees are taken by the management, they may lose their earnings in full. When a downtime occurs, verbal instructions from the boss are not enough.
In the absence of appropriate written orders, it is necessary to require him to issue an order in accordance with all the rules of the Labor Code of the Russian Federation. If the company's management does not strive to comply with the legislation of the Russian Federation, then it is necessary to contact the relevant authorities to resolve conflict situations between employer and employees.
At gross violations of the Labor Code, the employer may be sued for compensation for moral damages and compensation for wages.
In contact with
There are situations when things at the enterprise are not going as well as we would like, and it is necessary to temporarily suspend work. What to do with the employees in this case? Announce simple! To ensure that the introduction of downtime does not turn into litigation, it is necessary to correctly draw up all the documents. We will study what mistakes employers make in such situations.
It is no secret that the norms of the Labor Code of the Russian Federation on downtime are not numerous. According to Art. 72.2 of the Labor Code of the Russian Federation, idle time is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. By virtue of Art. 22, 56 of the Labor Code of the Russian Federation, the employer is obliged to provide employees with work due to employment contract. In case of failure to fulfill this obligation, the legislator imposes liability on the employer in the form of payment for downtime.
According to Art. 157 of the Labor Code of the Russian Federation, downtime due to the fault of the employer is paid in the amount of at least 2/3 of the average salary of the employee. Downtime for reasons beyond the control of the employer and employee is paid in the amount of at least 2/3 of the tariff rate, salary ( official salary) calculated proportionally to the idle time. Downtime due to the fault of the employee is not paid.
With a rather "modest" legal regulation just me personnel services are forced to turn to judicial practice in order to avoid mistakes when registering downtime and protect the employer from litigation. Consider what mistakes employers most often make when declaring downtime.
1. Incorrectly defined downtime type
The Labor Code of the Russian Federation distinguishes three types of downtime: due to the fault of the employer, for reasons beyond the control of the employer and the employee, and through the fault of the employee. Depending on the type of downtime, the Labor Code of the Russian Federation provides for various amounts of downtime payment. It is not easy in practice to determine whether the employer is at fault, or whether the downtime arose for reasons beyond the control of either party to the employment contract. In the event of an incorrect determination of the type of downtime and the amount of payment, the employer will be forced, according to the court decision, not only to make additional payments, but also to compensate for moral damage, and if the employee applies to the labor inspectorate, he will also have to pay a fine.
Note. There is no exhaustive list of reasons for downtime in the Labor Code of the Russian Federation. It can be:
- liquidation, merger or division of structural divisions of the company (organizational reasons);
– introduction of new or change existing methods production of products (technological reasons);
- breakdown, replacement or modernization production equipment(technical reasons);
- financial crisis, severe financial situation companies, violation of contractual obligations by counterparties (reasons of an economic nature).
The main criterion for downtime due to the fault of the employer is that it is caused by the guilty actions or inaction of the employer - both intentional and as a result of inept management, failure to take into account entrepreneurial risk. Moreover, the obligation to prove the existence of these circumstances rests with the employer (paragraph 17 of the decision of the Plenum of the Supreme Court Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation Labor Code Russian Federation").
Often, employers refer to the introduction of downtime due to deterioration economic situation in the organization, believing that the reason did not depend on any of the parties to the employment contract. However, this opinion is erroneous. Judicial practice does not support it.
Arbitrage practice. The Vladimir Regional Court, in its appeal ruling dated October 31, 2013 in case No. 33-3566/2013, noted that the negative financial situation of the company (lack of orders) is a financial (commercial) risk in relations between business entities, therefore, it relates to the direct fault of the employer.
Arbitrage practice. The Tula Regional Court in the cassation ruling dated November 10, 2011 in case No. 33-3848 noted that the decrease in demand for manufactured products, the purchase of raw materials at inflated prices, and the decrease in production volumes are the fault of the employer.
Then the question arises: what will relate to the reasons that do not depend on the will of the parties? Let us turn to judicial practice and clarifications of officials. According to them it is:
- issuing orders government bodies(Determination of the Moscow City Court dated July 15, 2010 in case N 4g / 2-5685 / 10);
– extreme weather(See, for example, the recommendations of the Ministry of Health and Social Development on the organization of work and rest regimes in conditions of extreme temperatures and smoke dated 08/06/2010);
- breakdown of the machine tool of the employee who uses it, but is not to blame for its breakdown. For an employee who broke the machine, the reason for the downtime will be his guilty actions (letter of Rostrud dated 05/12/2011 N 1276-6-1).
2. There are no documents confirming the need for downtime
The personnel department must collect the package required documents, which will be a confirmation of the legality of the introduction of downtime.
Arbitrage practice. The Moscow Regional Court, in its ruling dated November 1, 2011 in case No. 33-24455, emphasized that when deciding to establish downtime, the employer must keep in mind that there must be commercial, accounting and other documents confirming the need to declare downtime. Otherwise, the court may find it unreasonable.
3. Downtime not documented
The labor law does not mandatory requirements to the content of the simple documentation. Therefore, the employer decides for himself how best to do it. In any case, you need to issue a demurrage order. By the way, it will be needed by the accounting department to account for expenses for income tax purposes.
Arbitrage practice. Since the amount of payment for downtime depends on the cause of its occurrence, each downtime must be documented, identifying its cause (ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated February 3, 2014 in case N 33-321 / 2014, appeal ruling of the Kemerovo Regional court of 30.01.2014 in case N 33-73-2014).
Based on judicial practice, the order should reflect:
- start and end dates. A specific end date may not be indicated if at the time of issuing the order it is impossible to determine the duration of downtime (the labor legislation does not establish deadlines for its introduction);
- Cause of downtime. Here you should indicate the nature of the reason: economic, technological, technical or organizational; describe the specific circumstances leading to the downtime;
- due to whose fault the downtime occurred (employer, employee or for reasons beyond the control of the parties);
- positions (professions), full name employees or the names of the structural divisions of the organization in respect of which the downtime is declared;
- the need for the presence at the workplace of employees in respect of which a downtime is declared or permission not to go to work (indicating specific full names, positions (professions), structural divisions or the organization as a whole).
Labor legislation also does not impose requirements for documents that are the basis for an order. Depending on the workflow in the organization, these can be:
- official (report) note of the head structural unit whose competence includes the organization or control of the relevant work;
- downtime record sheet. Its form is not legally established. Usually, it contains the date and time of the start and end of downtime, full name. and positions (professions) of employees and reasons for downtime;
- an act of idle time, which is drawn up by the heads of idle structural divisions; it reflects the reasons and duration of downtime, positions (professions) of employees, etc.
By the way, it should be borne in mind that if a downtime actually took place, but the employer, in violation of the law, did not issue an order to announce it and did not pay the downtime in an appropriate way, then this will not prevent the court from ruling in favor of the employee.
Arbitrage practice. The division of the organization did not function due to a shortage of components, and SMS messages were sent to employees, as well as calls were made to Cell Phones that you don't have to go to work. The Lipetsk Regional Court, in an appeal ruling dated 02.10.2013 in case N 33-2607 / 2013, agreed with the state labor inspectorate, which issued an order obliging the employer to recognize working time specified in the messages, downtime and pay employees downtime.
4. The downtime order does not specify whether employees should be present at work
The Labor Code of the Russian Federation does not contain a requirement for the mandatory presence of employees at workplaces during downtime. But since the downtime period refers to working time (Part 1, Article 91 of the Labor Code of the Russian Federation), and not to rest time (Article 107 of the Labor Code of the Russian Federation), employees cannot use it at their discretion and leave their jobs. Their absence from work without the permission of the employer can be regarded as absenteeism. However, a downtime order may allow employees to stay away from work. In order to avoid disputes, the order should clearly indicate whether employees are required to be present at the workplace or not.
Arbitrage practice. The Orenburg Regional Court, in an appeal ruling dated 06/27/2013 in case N 33-3812 / 2013, confirmed the legality of the dismissal under subp. "a" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation due to the absence of an employee at the workplace during the downtime.
5. Downtime order issued by an unauthorized person
The order to declare downtime must be signed by the appropriate person (head of the organization or other authorized person). If an order is issued by an unauthorized person, the announcement of downtime may be declared illegal.
Arbitrage practice. As emphasized by the Khabarovsk Regional Court in the appeal ruling of July 20, 2012 in case N 33-4009 / 2012, the director of the organization is not authorized to issue an order for downtime after the introduction of bankruptcy management. In such a situation, only the bankruptcy trustee can do this.
6. Employees were not familiar with the order to establish downtime
Employees for whom downtime is declared must be familiar with the downtime order. In case of refusal to familiarize, an act is drawn up, which is signed by the commission.
7. The employment service is not notified about the downtime associated with the suspension of production
The employer is obliged to notify the employment service of the downtime if it is associated with the suspension of production. At the same time, as Rostrud explained in a letter dated March 19, 2012 N 395-6-1, we are talking about the suspension of production as a whole, and not of individual units or equipment. This must be done within three working days after the decision to suspend production (declaration of downtime) (paragraph 2 of article 25 of the Law of the Russian Federation of 19.04.1991 N 1032-1 "On employment in the Russian Federation"). Since the unified form of the message has not been approved, it can be made in free form.
8. An employee who was declared idle was transferred to another job without his consent
Some employers, referring to Part 3 of Art. 72.2 of the Labor Code of the Russian Federation, they practice the transfer of an employee who has been declared idle to another job without his consent. It should be remembered that such a transfer is allowed only if the downtime is caused by the emergency circumstances listed in Part 2 of Art. 72.2 of the Labor Code of the Russian Federation.
Arbitrage practice. As indicated by the Moscow City Court in the appeal ruling of 06/06/2012 in case N 11-9038, from the analysis of the norms of Art. 72.2 of the Labor Code of the Russian Federation it follows that the transfer of an employee to another position is allowed if the downtime is caused by a natural disaster or technogenic nature, industrial accident, accident at work, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases that endanger the life or normal living conditions of the entire population or part of it. Since no such circumstances were established by the court, the employee's transfer was declared illegal.
9. The time sheet for the downtime period is not drawn up or is drawn up incorrectly
According to Art. 91 of the Labor Code of the Russian Federation, working time is the time during which an employee, in accordance with the rules of internal work schedule and the terms of the employment contract must perform labor duties, as well as other periods of time that, in accordance with the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation, relate to working time. The employer is obliged to keep a record of the time actually worked by each employee.
On the basis of orders, memos, acts or sheets of idle time, a time sheet is filled out. Can be used unified forms N T-12 or N T-13, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1, which for this should be approved by order for the organization. In the appropriate columns, it is necessary to indicate the alphabetic or numeric idle code (due to the fault of the employer - "RP" or "31", as well as the length of time not worked (in hours, minutes)).
Arbitrage practice. Failure to reflect downtime or its type in the time sheet entails the illegality of the announcement of downtime (appeal ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated February 3, 2014 in case N 33-321 / 2014).
Incorrect indication of the type of downtime (due to the fault of the employer or for reasons beyond the control of the employer) in the time sheet and the corresponding incorrect payment of downtime in the event of a dispute entails the court charging additional wages to the employee for the downtime (cassation ruling of the Tula Regional Court dated 11/10/2011 in case No. 33-3848).
10. Mistakes made when paying for downtime
Downtime caused by the fault of the employer is paid in the amount of at least 2/3 of the average salary of the employee (part 1 of article 157 of the Labor Code of the Russian Federation).
According to Art. 139 of the Labor Code of the Russian Federation for all cases of determining the size of the average wage (average earnings), a single procedure for its calculation is established. To calculate the average wage, all types of payments provided for by the wage system applied by the relevant employer are taken into account, regardless of the sources of these payments. In any mode of work, the calculation of the average salary of an employee is made on the basis of the salary actually accrued to him and the time he actually worked for the 12 calendar months preceding the period during which the employee retains the average salary. In this case, the calendar month is the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive).
Arbitrage practice. The Moscow Regional Court, in its ruling dated January 31, 2012 in case N 33-2350, drew attention to the fact that when establishing the average daily wage, the total amount of payments is not divided by the number 29.4, since it is the average monthly number calendar days and is used solely to determine the average daily earnings for vacation pay and compensation for unused vacation.
If the employer incorrectly determined the type of downtime (for example, indicated downtime for reasons beyond the control of the employer and the employee, while in fact the downtime took place through the fault of the employer), then the court will correct it, while additionally accruing payment for downtime (appeal ruling of the Vladimir Regional Court dated October 31 .2013 in case N 33-3566/2013). That is why it is so important to determine the type of downtime correctly.
By the way, payments in favor of employees for downtime are not compensatory in terms of the terminology of the Labor Code of the Russian Federation (Article 164) and are subject to personal income tax on the basis of paragraph 1 of Art. 210, Art. 217 of the Tax Code of the Russian Federation.
11. The employee is forcibly sent on unpaid leave for the downtime
From Art. 128 of the Labor Code of the Russian Federation, it follows that leave without pay is divided into those that the employer can provide to the employee, and those that he is obliged to provide. But both in the first and in the second cases, the basis for granting such leave is the initiative of the employee and his voluntary will. The possibility of sending an employee on leave without pay at the initiative of the employer, although on the basis of the employee’s application, but due to circumstances that are related to the activities of the employer company, labor law not provided.
On June 27, 1996, the Ministry of Labor of the Russian Federation issued clarification No. 6 "On leave without pay at the initiative of the employer", in which it indicated that such leaves can only be granted at the request of employees at family circumstances and other good reasons. "Forced" leave without pay at the initiative of the employer labor legislation is not provided.
12. The employee is paid for downtime if he falls ill during this period
The question of whether to pay for downtime if an employee falls ill has led to much controversy until recently. Specialists of the FSS of Russia believed that the benefit should not be accrued if the employee fell ill during the idle period (letter dated 03.22.2010 N 02-03-13 / 08-2497). However, the courts took a different view.
Arbitrage practice. The Presidium of the Supreme Arbitration Court of the Russian Federation in its resolution of May 18, 2010 N 17762/09 indicated that the legislation in force at that time did not establish the dependence of the payment of benefits on when the employee fell ill (before the downtime or after).
Interestingly, the point of view of the courts did not find support among legislators. From 01.01.2011 Federal Law No. 255-FZ dated 12.29.2006 "On Mandatory social insurance in case of temporary disability due to motherhood" (hereinafter - Law N 255-FZ) were amended. According to new edition Part 7 Art. 7 of Law N 255-FZ, a temporary disability certificate is paid only if the employee’s illness occurred before the organization declared idle time.
Arbitrage practice. In the ruling of the Constitutional Court of the Russian Federation of January 17, 2012 N 8-О-О "At the request of the Livoberezhny District Court of the city of Lipetsk to verify the constitutionality of paragraph 5 of part 1 of Article 9 federal law"On compulsory social insurance in case of temporary disability and in connection with motherhood" it is indicated: clause 5, part 1, art. 9 of Law N 255-FZ, which excludes the appointment of an insured person for the period of downtime for temporary disability benefits that occurred during the downtime, due to the intended purpose of this type of insurance coverage and in systemic connection with Art. 157 of the Labor Code of the Russian Federation cannot be considered as violating the constitutional rights of citizens.
13. Downtime announced simultaneously with the reduction without objective reasons
In accordance with Part 2 of Art. 180 of the Labor Code of the Russian Federation upon termination of an employment contract due to a reduction in the number or staff, the employer is obliged to notify the employees in writing under a personal signature at least two months before the dismissal. At the same time, from the date of notice of dismissal until the day of termination of the employment contract, the essence employment relationship between employee and employer does not change. The employer is obliged to provide the employee with work according to the stipulated labor function pay wages on time and in full, etc.
Simple in meaning Art. 72.2 of the Labor Code of the Russian Federation is a temporary measure in connection with the occurrence of certain circumstances that do not entail a decrease in the number of employees and termination of the employment contract. As we have repeatedly stated, the employer must have objective circumstances (of an economic, technological, technical or organizational nature) to issue an order for downtime in the organization (individual divisions of the organization).
Thus, carrying out measures to reduce the number or staff of the organization's employees and notifying them of the upcoming
Dismissals do not constitute downtime in the sense in which this term
Used in part 3 of Art. 72.2 of the Labor Code of the Russian Federation. If there are objective circumstances that caused the downtime, and the employer issued an appropriate downtime order, then employees who were warned about dismissal due to a reduction in the number or staff may also be in downtime (clause 2, part 1, article 81 of the Labor Code of the Russian Federation).
In the event of a dispute, the courts evaluate the circumstances that led to the downtime and find out whether it was caused by a temporary suspension of work.
Arbitrage practice. The Kemerovo Regional Court, in an appeal ruling dated January 30, 2014 in case No. 33-73-2014, confirmed the legality of the announcement of downtime during the period of notification of staff reductions, and indicated that the plaintiff was sent to downtime not because his position was subject to reduction, but due to reasons of an economic nature, about which the appropriate orders were issued by the employer.
Arbitrage practice. In turn, the Murmansk Regional Court, in its appeal ruling dated March 5, 2014 N 33-377-2014, pointed out the illegality of the announcement of downtime, since the issuance of the downtime order in relation to the plaintiffs was not caused by a temporary suspension of work. The lack of work for the plaintiffs was of a permanent nature, without having signs of its temporary suspension.
14. An order to end the downtime has not been issued (in the absence of an end date for the downtime in the order)
If a specific end date was indicated in the order to declare downtime (for example, "declare downtime from 08/07/2014 to 08/18/2014"), then the action this order stops automatically. If the order to declare downtime was issued with an open date (that is, at the time of its issuance it was impossible to determine the duration of the downtime), then the employer must issue an order to end the downtime, in which to indicate:
- the date from which work resumes;
- positions (professions), full name employees (employee) or the names of structural units (subdivisions) of the organization that start work after downtime.
AT without fail employees of the relevant departments should be familiarized with the order under a personal signature. This will help to avoid controversial situations when employees did not show up for work and claim that the employer did not notify them of the end of downtime.
Is it possible to declare downtime for laid-off workers
Is it possible to declare downtime for the period of validity of the notice of dismissal due to a reduction in the number or staff of employees, experts of the service explainLegal consulting GARANTNatalia Mikhailova and Victoria Komarova.
The company has a structural unit located separately from the main office, which was closed because the owner of the leased premises refused to renew the lease. It is not possible to transfer employees to another place of work, it is planned to reduce the number (staff). Due to the lack of rented premises, the company decided to declare downtime for the laid-off employees. Are the employer's actions legal?
Paragraph 2 of the first part of Art. 81 of the Labor Code of the Russian Federation provides for the possibility of terminating an employment contract at the initiative of the employer in connection with a reduction in the number or staff of employees of the organization with the obligatory personal notification of the reduced employees against signature (part two of Article 180 of the Labor Code of the Russian Federation). Because the labor Relations during the period of validity of the warning about the reduction continues, then from the moment of the warning and until the dismissal, the employee and the employer retain all the rights and obligations that the parties have incurred on the basis of the employment contract concluded by them. First of all, during the period of the notice of dismissal to reduce the number or staff of employees until the day the employment contract is terminated, the employer is obliged to pay employees the wages provided for by the employment contract concluded with him earlier (Article 135 of the Labor Code of the Russian Federation).
In accordance with Art. 72.2 of the Labor Code of the Russian Federation, downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. Downtime that occurred through the fault of the employer is payable in the amount of at least 2/3 of the average salary of the employee (part one, article 157 of the Labor Code of the Russian Federation). It should be noted that the current legislation does not establish a direct ban on the employer declaring downtime during the procedure for reducing the number or staff of employees. At the same time, the very definition of the concept of downtime, given in Art. 72.2 of the Labor Code of the Russian Federation does not allow us to say with a sufficient degree of certainty that the warning of employees about the upcoming dismissal due to staff reduction has no effect on the possibility of declaring downtime.
At present, the judicial practice has not unequivocally resolved the question of under what conditions an employer's announcement of a downtime period in relation to employees who have been warned by the employer about dismissal due to a reduction is recognized as legal.
Many courts proceed from the fact that downtime is a temporary phenomenon, after its completion, the employee must be provided with work stipulated by the employment contract. In a situation where the downtime is announced by the employer during the period of warning of a reduction in the number or staff of employees, the temporary nature of the suspension of work is lost, since the employer has already decided that work will not continue after a certain time (warning period). At the same time, the exclusion of a position or staff unit from staffing during the period of downtime or on the day when downtime was declared, can serve as one of the evidence that such a suspension of work is not temporary (decree of the Presidium of the Moscow City Court dated May 18, 2000, appeal ruling of the IC in civil cases of the Irkutsk Regional Court dated May 6, 2013 in the case N 33-3538 / 13, cassation ruling of the IC in civil cases of the Kostroma Regional Court dated February 13, 2012 in case N 33-36, decision of the Dzerzhinsky District Court of Perm dated October 21, 2010 (Extraction), decision of the Central District Court of Komsomolsk- on-Amur dated 03/21/2013 in case N 2-2251 / 13; appeal ruling of the IC in civil cases of the Irkutsk Regional Court of 07/30/2013 in case N 33-6188 / 13; appeal ruling of the IC in civil cases of the Murmansk Regional Court of 06.06. 2012 in case N 33-1378; appeal ruling of the IC in civil cases of the Supreme Court of the Republic of Karelia dated 06/25/2013 in case N 33-1639 / 2013, etc.).
In addition, one of the arguments not in favor of the employer who issued the order to introduce downtime in relation to employees laid off on layoffs may be the absence in the order of temporary suspension of work of the period (term) for which work is suspended, or the coincidence of the downtime period with the warning period dismissal of employees (decision of the Pravoberezhny District Court of Lipetsk dated April 9, 2013 in case No. 2-867/13; appeal ruling of the IC in civil cases of the Murmansk Regional Court dated August 13, 2014 in case No. 33-2276).
However, arbitrage practice is also replete with examples of judges showing loyalty to an employer who declared downtime during the period of warning employees about dismissal due to redundancy, including in the case when their positions were excluded from the staff list during the downtime (decision of the Pravoberezhny District Court of Magnitogorsk dated 11/01/2013 in case N 2-2761/13; appeal ruling of the Moscow City Court dated 07/24/2013 N 11-20520/13). An analysis of such examples of judicial practice allows us to conclude that the court's conclusion on the legality of declaring a downtime period and paying for this period according to the rules of Art. 157 of the Labor Code of the Russian Federation largely depends on whether the employer can prove that the lack of work and, accordingly, the temporary suspension of work were caused precisely by reasons of an economic, technological, technical or organizational nature. Such reasons may also include the termination by the employer of a certain type of activity, regardless of whether it was the result of external circumstances or completely dependent on the actions of the employer (see, for example, the ruling of the Investigative Committee on civil cases of the Sverdlovsk Regional Court dated May 19, 2011 in the case N 33-6940 / 2011, appeal ruling of the IC in civil cases of the Kirov Regional Court dated January 31, 2012 in case N 33-334, appeal ruling of the Moscow City Court dated July 24, 2013 N 11-20520 / 13, decision of the Central District Court of Tula dated October 29, 2013 in case No. 2-3547/13; the appeal ruling of the IC in civil cases of the Kemerovo Regional Court dated January 30, 2014 in case No. 33-73-2014).
Thus, the final decision on the legality or illegality of the actions of the employer in this situation can only be made by the court, taking into account all the circumstances of the case. Obviously, if employees are unable to continue their work function due to the employer's lack of the right to use the premises in which the workplaces were located, then under normal circumstances, the employer must issue a downtime. But in the situation under consideration, the employer does not plan to move these jobs to another place for the employees to continue to perform their duties until the end of the notice period for dismissal, and it is not known whether the work performed by the employees of the structural unit will continue to be performed by other employees of the organization during the period idle time announced in relation to employees of the structural unit. Accordingly, in the analyzed case, it is impossible to completely exclude the risk that the court will recognize the actions of the employer to declare downtime illegal. We believe that when considering a case in court, in the event of a labor dispute, in favor of the employer, for example, the fact that the downtime was not announced immediately after the employees were warned about dismissal under paragraph 2 of part one of Art. 81 of the Labor Code of the Russian Federation (that is, despite the fact that the reduction was planned, the employees were provided with work at least for some time before dismissal). Also, the employer should not exclude the positions of employees from the staff list until the day they are dismissed. In addition, the employer should pay special attention to the wording of the temporary suspension order itself.
Question
Downtime has been declared at the enterprise for reasons of an economic nature. By the Order on the enterprise, the presence of employees during the downtime at the enterprise is not required. Nevertheless, employees are periodically called by the employer to perform their labor function. The types of rest time during which the employee is not required to be at the workplace are established in article 107 of the Labor Code of the Russian Federation. At the same time, downtime is not indicated among them, so downtime does not apply to rest time. Is it possible to dismiss an employee who is in idle time for absenteeism when he is absent from work at the request of the employer?
Answer
No.
Your order established that the presence of employees during the period of downtime at the enterprise is not required.
Therefore, the absence of an employee in the workplace without good reason more than four hours or during the entire shift during the downtime announcement period may be grounds for dismissal for absenteeism (,)
The rationale for this position is given below in the materials of the "Personnel System" .
“Question from practice: should the employee be at the workplace during downtime
Yes, it should.
The legislation does not require the release of an employee from the obligation to be at the workplace in case of downtime. This is true regardless of whose fault the downtime occurred. This follows from the Labor Code of the Russian Federation.
The types of rest time during which the employee is not required to be at the workplace are established in the Labor Code of the Russian Federation. At the same time, downtime is not indicated among them.
Thus, downtime is not rest time, but is working time, during which the employee must be at the workplace.
The legitimacy of such a position has also been confirmed by the courts, see, for example, definitions,.
At the same time, downtime is not limited by law, and in fact, the suspension of work can last from several hours to several months. In the event of a long downtime, the employer, at its discretion, may release employees from the obligation to be present at work. Such a decision should be issued by order in any form.*
At the same time, this exemption does not relieve the employer of the obligation to pay downtime in accordance with labor legislation ().
Question from practice: is it possible to be fired for absenteeism during downtime caused by the fault of the employer. Employer obliges employees to stay at work
Yes, you can.
In the event of downtime, the employer has the right to independently determine the need for the presence of employees at the workplace. If during the downtime period the employer obliged employees to be at the workplace, a violation of this requirement can be considered a violation of labor discipline ().
Yes, you can.
An employer can declare downtime for all or several employees.
How to issue a simple detail about this, see the materials in the rationale.
The rationale for this position is given below in the materials of the "Personnel System" .
Article: How to arrange a simple
“Interruptions in the supply of equipment and components during a crisis are not uncommon. Not to mention the fall in demand for goods, accidents, etc. Because of this, many employers are forced to suspend production. To save jobs, they are declaring downtime. However, in order to enter a simple, you need to follow a certain order. You will learn how to arrange a simple organization in the article.
What are the reasons for downtime
Simple - temporary suspension of work (). The reasons for such a suspension may be different: economic, technological, technical or organizational (table below). In this case, the employer may declare downtime for all or several employees.*
Classification of reasons for downtime
Simple can happen:
- due to the fault of the organization;
- for reasons beyond the control of the organization and the employee;
- the fault of the employee.
This depends on how you pay for downtime. In all cases, except for downtime due to the fault of the employee, the employer must justify its reason. This is important, because an employee can complain to the GIT, the prosecutor's office or the court.*
Companies often explain downtime as anything but not their fault. However, one must proceed with caution here. To downtime for independent reasons, inspectors include one that arose as a result of an accident or disaster. But the decrease in demand for products they consider the fault of the employer.
demurrage act
The law obliges the employee to notify the employer of downtime due to equipment breakdown and other cases if they make further work impossible (). There is no form of notification in the law. Therefore, this can be done orally, but it is better in writing. For example, an employee can write a statement or draw up a memorandum addressed to the immediate supervisor.
To pay for downtime, the moment it starts is important. Therefore, be sure to record the fact of downtime in the appropriate act. In the document, reflect the date, time and place of compilation, the reason for the downtime and the employees who are forced to be idle. Specify the end date of downtime (if known in advance). The act must be signed by all employees who compiled it.
downtime order
Draw up an order based on the demurrage act. In it, name the reasons why the downtime arose, the date it began and the employees for whom it was introduced. Be sure to indicate whether employees need to be present at their workplaces or they can not go to work. Familiarize the document with the signature of all the employees to whom it relates (). *
Employment Service Notice
Notify the employment service about the downtime only if it entailed the suspension of production. Do this no later than three working days from the date of such a decision (). Otherwise, the organization may be fined in the amount of 3,000 to 5,000 rubles, and its head - in the amount of 300 to 500 rubles ().
Contact your employment office for details of the notification form. If they don't have form requirements, create a free-form document (sample below). In it, indicate the start date of the downtime (5) and the reason for the suspension of production (6). List the employees affected (7) and indicate the expected end date (8).
Downtime accounting
Each employer must keep records of the time that each employee actually worked (). Therefore, downtime is also fixed in the time sheet. To indicate downtime due to the fault of the employer, use the letter code "RP" or the digital "31". If the downtime occurred due to reasons beyond the control of the parties, enter the code "NA" or "32". Downtime due to the fault of the employee, mark the code "VP" or "33". *
State and municipal institutions use a time sheet in the form No. 0504421. It does not have a special code for downtime. Therefore, such organizations can introduce it on their own (approved).
Downtime payment procedure
Downtime due to the fault of the employee does not need to be paid (). Downtime due to the fault of the organization or for reasons beyond the control of the parties must be paid.
Payment for downtime due to the fault of the organization. Pay downtime due to the fault of the organization in the amount of not less than 2/3 of the average salary of an employee ().
Example
The average daily earnings of an employee is 900 rubles. For three days of downtime due to the fault of the employer, he needs to accrue 1,800 rubles. (900 rubles × 2/3 × 3 days).*
Payment for downtime for unrelated reasons. Downtime for reasons that do not depend on the organization and the employee, pay in an amount not less than 2/3 of his tariff rate or salary. In this case, use the tariff rate (salary) calculated based on downtime (). The procedure for calculating downtime payment in this case depends on the form of remuneration.
Hourly rate. In this case, calculate the salary for the month in which it was idle, using the formula:
Daily rate. Determine the salary for the month in which it was idle using the formula.