At the initiative of the employer, the dismissal of an employee may be in the event of a reduction in staff or headcount, and a prerequisite for such dismissal should be competent documenting layoffs - notification of the employee within a certain period, offer of vacancies. In addition, it must be paid severance pay upon dismissal due to redundancy (clause 2, part 1, article 81 of the Labor Code of the Russian Federation, part 1, article 178 of the Labor Code of the Russian Federation).
The redundancy process
Quite often, dismissal on this basis is disputed by the employee due to non-compliance with procedural issues. What is required for legal dismissal?
First of all, the organization must real reduction state, that is, the reduced position should be actually excluded from the staff list, and not renamed. This may be the case if the official duties there is no longer a need to perform, and the rest is redistributed among other workers. In addition, it is necessary to inform the employee in advance, at least two months in advance, about the dismissal against signature, to offer vacant positions (Article 180 of the Labor Code of the Russian Federation). An obligatory element of the dismissal procedure is the payment of severance pay upon reduction and the preservation of average earnings for the period of the second, and in exceptional cases, the third month of employment (Article 178 of the Labor Code of the Russian Federation).
Severance pay
The obligation to pay severance pay is determined by law. At the same time, the internal documents of the organization may provide for an increased severance pay for certain situations or for certain categories of employees, for example, the allowance may be higher for employees who have worked for many years at the enterprise. In addition, an employment contract with an employee or an additional agreement may indicate the payment of a severance pay in excess of that established by law.
But regardless of the provisions of local acts or categories worker there is a mandatory procedure for calculating the amount of severance pay upon reduction, and in 2017 this procedure has not changed.
Upon dismissal due to redundancy, among other payments, the employee must pay a severance pay in the amount of the average monthly earnings. In addition, if a former employee does not find a job, he will be able to receive benefits for one more month, and in exceptional cases for the third (Article 178 of the Labor Code of the Russian Federation).
But apart from general rule, which determines the amount of severance pay, provides for specific features in relation to certain categories of employees:
- if the employee is concluded fixed-term contract for up to two months, the benefit is not paid;
- if this is a seasonal worker, then the severance pay is paid in the amount of two weeks of earnings (part 3 of article 296 of the Labor Code of the Russian Federation);
- if the organization is in the Far North, then payments can be made to the employee even if he could not find a job within six months (Article 318 of the Labor Code of the Russian Federation);
- if managers, their deputies, chief accountants of state and municipal companies, then the size of the severance pay is limited to the maximum amount - three times the average monthly earnings (Article 349.3 of the Labor Code of the Russian Federation).
Terms of payment of benefits upon dismissal due to redundancy
The payment of benefits is made on the last day of work, together with the due salary and compensation for unused vacation.
The basis for the payment of benefits for the second month will be the work book of the reduced employee, confirming that the employee is not employed. It is recommended to apply for former employee with a copy attached work book. Payment for the third month is made only on the basis of the decision of the employment service.
But with regard to the payment period, the legislation does not specify the period within which the payment should be made. Taking into account the fact that the employee applies for payment after the expiration of the period specified in the legislation, that is, at the end of the second and third months, the payment date can be agreed additionally and indicated in the employee's application.
Strict observance of the procedure for dismissing an employee to reduce staff or headcount is the main condition for its legitimacy. Any deviation from it can lead to unpleasant consequences for the employer - the reinstatement of the employee at work, the cost of paying for his forced absenteeism and moral damage, administrative fines, etc.
What does labor law say about reducing the number or staff of employees
The Labor Code of the Russian Federation regulates the issues of reduction in several articles relating to the issues of dismissal, guarantees and compensations. However, being guided only by them is sometimes not enough.
Important for resolving disputes that arise are arbitrage practice and clarifications of the highest judicial bodies, for example, Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2.
If the employee is recognized as not having this right, then the process of his dismissal begins to reduce the number or staff of employees.
But first, he is invited in writing to transfer from his own to another vacant position in the organization (part 3 of article 81 of the Labor Code of the Russian Federation), which can either correspond to his qualifications or be lower or lower paid. There is only one condition - the employee should not have medical contraindications for this work.
The law obliges the employer to offer such an employee all the vacancies he has in the given locality, and in other localities - only if such a provision is enshrined in local acts organization or employment contract with the employee.
Employee redundancy notice
Required condition the legality of the reduction of the employee is his written personal warning by the employer about the future dismissal under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation no later than two months, carried out against signature.
The two-month period before dismissal can be reduced only in one case - if, in accordance with Part 3 of Art. 180 of the Labor Code of the Russian Federation, the employer offered the employee in writing to terminate the relationship ahead of schedule, and the employee agreed. At the same time, he retains the right to all guarantees and payments due upon reduction, and additional compensation is paid in proportion to the time remaining before the expiration of the two-month notice period for dismissal.
The opinion of the trade union body
The reduced employee is paid severance pay in the form of his average monthly earnings. He also retains the average monthly salary for the period of employment, not exceeding two months from the date of dismissal. Severance pay is paid in this amount.
Reduction of staff- a procedure that requires compliance with certain rules and the implementation of the necessary payments from the employer. What is the procedure for dismissal due to redundancy, what documents need to be issued, who cannot be reduced, what compensation and payments should the employer pay when reducing an employee? These questions will be discussed in the article below.
The procedure for laying off an employee
If the organization decides to reduce staff units or a whole staff, then this process must be properly formalized, the dismissal must be subject to certain rules, and the employee must be paid a number of compensation payments. First of all, it is worth noting that a reduction in the number of employees implies a decrease in the staffing of one or more positions, and a reduction in staff is the exclusion of a position from the staff of employees completely. For example, in staffing it is written that the organization has an accountant position in the number of staff units of 5 people, staff reduction will mean the exclusion of the accountant position completely, that is, the organization remains without accountants. If only the number is reduced, for example, by 2 staff units, then this only means a decrease in 5 accountants to 3.
Employees who cannot be laid off
When carrying out the dismissal procedure, it should be remembered that there are categories of employees who cannot be dismissed by reduction. These include:
- Pregnant;
- Women with children under 3 years old;
- Single mothers raising children under 14 years old (if the child is disabled, then up to 18 years old);
- Other persons raising a child without a mother;
- The only breadwinner in a family with a disabled child under 18;
- The sole breadwinners of a large family (3 or more young children) with a child under the age of 3 years.
The above persons are not allowed to be fired at the request of the employer. This is clearly spelled out in the Labor Code of the Russian Federation, Article 261. How is the redundancy process going?
The procedure for layoffs for downsizing
The employee reduction procedure begins 2 months before the expected date of dismissal.
First of all, an order is issued to reduce the staff or number of employees. The order prescribes the positions that are subject to reduction, the number of staff units that need to be fired.
Simultaneously with the above orders, a Notice of termination of the employment contract is created in connection with the dismissal for reduction. This document should contain a surname list of employees to be dismissed. All employees who have been made redundant must read the Notice. In front of his last name, everyone must put his signature.
According to Art. 180 of the Labor Code of the Russian Federation, the employer is obliged to offer employees who are dismissed for redundancy another vacant position, if any. Moreover, it is possible to offer a position that will be lower than the one he occupied before the reduction, but the employer is not obliged to offer a position higher than the one occupied.
Offer to the employee vacancies it should also be documented why the Notice is issued indicating the available vacancies. The employee must familiarize himself with this document and put his signature as a sign of consent or refuse the proposed positions also in writing in the Notice.
The employer's next step in the downsizing procedure will be to issue a notice to the employment service. The notification form can be found in Appendix No. 2 to the Decree No. 99 of February 5, 1993. You must also notify the employment service 2 months before the date of dismissal.
Note that the article stated that Required documents and notices must be issued 2 months before the proposed layoff for reduction. But if the reduction in the number or staff of employees is planned on a massive scale, then the period increases to 3 months.
It is better for the employer to follow the procedure for reducing employees specified in the article. With errors in this procedure (through ignorance or intentionally), very often competent employees begin to defend their rights through the courts and, as a rule, win such disputes.
Job loss is the biggest problem that can be caused by the financial and economic crisis. To get out of trouble financial situation organizations are optimizing production process. As part of the optimization, staff reductions are often made. Who can't be made redundant? What rights does a reduced employee have? What is the responsibility of the leadership of the organization?
What is downsizing?
Employees is a procedure for the abolition of positions (one or more), carried out in accordance with labor legislation. One of the methods of reducing units is the elimination of vacancies. The staffing table is the main evidence confirming the fact of a reduction in the number of employees. If the organization does not have a staffing table, then the payroll or list of employees can also act as a supporting document.
Legal downsizing
Russian labor law regulates the procedure and determines the grounds for the reduction of employees. So, the employer can dismiss employees due to a reduction in the number of staff units, reorganization or liquidation of the enterprise. At the same time, the employer himself determines the optimal number of employees of the organization. By law, the employer is not obliged to justify the decision to dismiss an employee for reduction, however, formally, the procedure should be carried out on the basis of the Labor Code of the Russian Federation (Articles 82, 179, 180, 373). It is possible to dismiss an employee of an organization due to a reduction in the number of employees only when the position he occupies is liquidated.
Wrongful downsizing
In practice, there is often an illegal (imaginary) staff reduction, which has no real reasons. This procedure is illegal. Employers resort to this method when they need to fire an employee, but there are no real reasons for this. If the procedure for terminating contracts is carried out incorrectly or if it is not observed, the reduction is also considered unlawful. The rights of the dismissed this case can be defended in court. However, in practice it is quite difficult to convict employers of illegal actions.
How to get fired
This procedure consists of several stages.
- The launch of the procedure for reducing the number of employees must be formally confirmed by the relevant order and the approval of the new staffing table. In this case, the new schedule is approved before the start of the procedure itself. The dismissed will be those employees whose position was not preserved in the new staffing table.
- regulates the next stage of the procedure. At least 2 months before the planned date of termination of employment contracts with employees, the employer must without fail send a written notice to the trade union organization.
- At least 2 months before the dismissal of employees due to staff reduction, the employer is obliged to notify the local employment service in writing. The notice must indicate the position, specialty, profession and qualifications of each individual employee. The employment service must be informed of the planned reduction in the staff of the organization at least 3 months in advance, if the procedure can provoke mass layoffs.
- 2 months before the scheduled date, the employer must inform his employees about the reduction against signature. When an employee refuses to sign the warning, the personnel department draws up an appropriate act.
- The employer must offer employees an alternative - vacant positions in their own or other companies. If vacancies appear in the organization during the warning period, the employer must first of all offer them to employees who have been laid off. If vacancies appear in the organization within a two-month period, the manager notifies the laid-off employees about this and in no case accepts new ones. When selecting vacancies, the qualifications and state of health of the employee should be taken into account. With his consent, the transfer procedure starts. Similar vacancies are offered first. The management of the enterprise has the right to dismiss an employee without warning by prior agreement of the parties, which is drawn up in writing. In this case, the injured party is paid additional monetary compensation, the amount of which is not limited by law and depends only on the agreement on the spot.
- The management of the enterprise publishes employees, where it indicates the date and reason for termination of the employment contract. Workers get acquainted with him under the signature. If the employee refuses to sign the order, an appropriate act is drawn up.
- Dismissed employees are counted on the last working day, they issue a work book with a corresponding entry. When dismissing employees who are members of a trade union, the reasoned opinion of this organization should be taken into account (Article 81 of the Labor Code of the Russian Federation, as well as 82 and 373). Dismissal of persons under 18 is allowed with the consent of the state labor inspectorate and the commission for the protection of the rights of minors.
Who can't be fired
In Russian labor legislation, there is a list of those employees who cannot be fired due to staff reduction. Who can't be fired?
- Women with children under 3 years of age.
- Women on parental leave (Labor Code of the Russian Federation, Article 256).
- Single mothers with children under 14 years old (if a disabled child - up to 18).
- Persons raising children under 14 years of age without a mother (if a disabled child - up to 18, article 261 of the Labor Code of the Russian Federation).
- Employees of organizations on vacation or sick leave.
- Minors without the consent of the state labor inspectorate.
Also, according to the Labor Code of the Russian Federation (Article 256), parental leave can be granted until the child reaches the age of 3 at the request of the mother. Workplace and the position in this case is reserved for the woman.
Can a pregnant woman be fired on the basis of a layoff? Such dismissal is considered illegal. As stated, dismissal is permissible only upon liquidation of the organization.
The only exceptions are cases where the reduction takes place as part of the liquidation of the enterprise.
Who has the benefits
In addition to the list of those who cannot be fired due to staff reduction, the Labor Code also includes such a concept as “preferential right”. According to Article 179 of the Labor Code, this right gives employees of organizations an advantage in maintaining their jobs while reducing staff, depending on the quality of their work. job duties or social reasons. These workers are the last to leave.
Employees with a high level of qualification and labor productivity have a preferential right. Work experience and education are also taken into account. Qualifications must be supported by certificates of completion educational institutions, certificates of advanced training, extracts from the protocols of commissions on the assignment of a category or category, etc. To assess the level of qualification of employees, the management of enterprises can conduct certification, including unscheduled. However, the procedure for conducting such attestations should be reflected in internal documents organizations. If all employees have equal qualifications and labor productivity, the manager makes a decision on dismissal together with the trade union organization.
Employees also have the priority right to retain their jobs:
- Containing two or more dependents (family circumstances).
- Who independently support their family (there is no other source of income other than the salary of this employee).
- Injured during the performance of labor obligations or occupational diseases from the employer conducting the reduction.
- War invalids.
- Improving qualifications without interruption from labor process in the direction of leadership.
AT collective agreement other categories of employees with the preferential right to retain their jobs may also be established.
Features of dismissal to reduce pensioners
Often in Russian organizations persons who have reached retirement age also work. However, age is not the reason for the primary reduction. Article 179 of the Labor Code states that age can also be an advantage for an employee, since it can be an indicator highly qualified and productivity.
It says that pensioners should be provided with all guarantees and payments upon dismissal for reduction. Other interpretations of these legislative norms contradict the principles of equal rights of workers and non-discrimination in the sphere of work.
Reduction payouts
According to 140, when terminating an employment relationship with an employee, the management of the organization must settle with him and pay all the money due. Payments must be made after the employee submits the relevant request no later than the next day.
If an employee is fired due to a reduction in staff, he necessarily receives a severance pay, the amount of which is equal to the average earnings for the month. Within two months, the employee is paid severance pay for the duration of the search suitable job. This payment can also be made for the third month if the dismissed employee applies to the employment service within 14 days after the termination of the employment contract and does not find a suitable job.
Additional compensation is paid to employees who were laid off without warning and in agreement with the employer. The amount of the payment is determined by the amount of the average monthly earnings, calculated in proportion to the time left before the expiration of the notice of reduction. Pensioners, as mentioned above, are paid all compensation, as well as ordinary workers. The head, his deputies, the chief accountant are paid compensation in the amount of at least three average monthly salaries.
In addition, employees who are dismissed due to staff reductions are entitled to payment for the days worked in the current month and compensation for unused vacation days.
The amount of the severance pay can be disputed. In this situation, the organization pays the employee an undisputed part of the amount. The remaining part is paid on the basis of an agreement between the employee and management or by a court decision.
Alternative
An alternative to the dismissal of employees for reduction is the termination of labor relations by agreement of the parties. First of all, this is beneficial for the employer, since he is exempted from paying additional compensation and severance pay, the likelihood of appealing the procedure in court is minimized, and there is no need to notify the trade union, the employment service. In addition, the list of those who cannot be fired due to staff reduction, on this procedure does not apply.
Employers often force their employees to quit own will. Thus, the employee is also deprived of severance pay and compensation, which he is entitled to during the reduction.
Employer's responsibility
Employers are liable in case of violation of the rules of the procedure for dismissal of employees in the event of a reduction in the number of staff. In case of violation of the terms of payments, according to Article 236 of the labor legislation, the employer is obliged to reimburse, in addition to the entire amount of money due to the employee, interest amounting to at least one three hundredth of the refinancing rate Central Bank Russia for each day of delay. The same sanctions apply to employers in case of delay in payment of wages. If the employer does not fulfill the obligation to provide the dismissed employees with vacant positions available at the enterprise, this threatens him with a fine of 5-50 minimum dimensions wages in accordance with Article 5.27 of the Administrative Code.
What to do when cutting
If you were fired for a reduction, what to do? You can contact several authorities. To get started, you can send a written application to the trade union organization of the enterprise. The trade union is obliged to respond to the complaint within a week. A wrongful layoff incident may be reviewed by the Federal Labor Inspectorate and the Attorney's Office. If the labor inspectorate did not reveal violations of the procedure, a lawsuit can be filed. This can be done within a 90-day period from the time the employee became aware of the violation of their labor rights. If the dismissed employee decides to challenge the termination of the employment contract, statement of claim must be filed within 30 days from the date of issue of the work book or a copy of the relevant order. Wrongfully dismissed employees do not pay duties and other legal expenses. If a redundancy dismissal is recognized as unlawful, the employee is reinstated at the previous workplace by the body that was authorized to consider the labor dispute. In this case, the employee is compensated for the average wages for the time of forced absenteeism or the difference for the period of low-paid work, as well as moral damage.
Dismissal due to a reduction in the number of employees in an organization can affect everyone. Therefore, it is so important to know the list of those who cannot be fired due to redundancy and who have a preferential right to retain their jobs. These issues are fully regulated by Russian labor legislation. The employer's decision to dismiss due to redundancy can be challenged both in court and by contacting the trade union, the prosecutor's office, and the Federal Labor Inspectorate. Russian labor legislation regulates the rights of a laid-off employee. If you have any difficulties, you should seek the help of a competent lawyer.
Nowadays, you need to be legally savvy in a variety of issues, especially when it comes to labor relations. What is important to know if you decide to quit or get laid off? about it with head of the legal direction of the Center for Social and Labor Rights Sergey Saurin.
If the employer refuses to sign the resignation letter
The leader has no right to interfere. You can decide to quit at any time, and you do not need to agree on leaving with your employer. The only restriction is that according to Article 80 of the Labor Code of the Russian Federation, you are obliged to notify your management in writing about leaving no later than two weeks in advance. A letter of resignation is just a form of warning, and it is important for you that you have proof in your hands that the employer received it. To do this, you can ask a person authorized to receive documents to sign the receipt of your application on a copy of this application (you keep a copy). If for some reason you are refused to sign on receipt of the application, you can send a telegram to the employer with acknowledgment of receipt - this will also be a notice of resignation in the proper form.
After the two-week notice period has expired, you will have the right not to go to work and demand a dismissal. By agreement with the employer, you can terminate the employment contract even before the expiration of the two-week period.
How to use the remaining vacation upon dismissal
The current Labor Code in Article 127 provides for two options for using leave upon dismissal:
If you were "asked"
Voluntary dismissal, according to the current Labor Code, does not imply the payment of any compensation to the employee. However, in a situation where you generally do not mind terminating the employment contract, but do not want to write a statement of your own free will, you can offer the employer to issue a dismissal by agreement of the parties. In fact, this is the same “conflict-free” basis for dismissal, but here you can bargain. The law does not limit your choice possible conditions dismissal agreements, it all depends on your negotiating ability. You can try to convince your employer to pay you monetary compensation in a certain amount, or ask for "compensation" in a different form (for example, good recommendations).
The agreement on termination of the employment contract must be drawn up in writing in two copies. Often it is drawn up in the form of an additional agreement to a terminated employment contract. From the moment it is signed by the parties, it is mandatory for both the employee and the employer.
You've been laid off, but you don't agree with it
In Art.179 Labor Code The Russian Federation stipulates that employees with higher labor productivity and qualifications have the preferential right to stay at work during the implementation of redundancy measures. All other possible criteria (including the length of service) are applied only in the case of equal labor productivity and qualifications of employees.
If you have reason to believe that the employer has chosen you unreasonably, you should appeal the dismissal in court. Unfortunately, it will not be possible to appeal against the actions of the employer before the layoff (dismissal or transfer, depending on the availability of vacancies), since the notice of reduction in itself does not violate your rights.
In court, you have to prove that your productivity and qualifications were higher than those of your colleagues in the position (or that you had a preferential right under other criteria, subject to equality of productivity and qualifications). Documents, testimonies or any other evidence of a position can be used as evidence. Evidence is better to start preparing in advance, even before the reduction has occurred.
How is the reduction allowance paid?
In accordance with Article 180 of the Labor Code of the Russian Federation on the upcoming dismissal due to a reduction in the number or staff of the organization's employees, employees are warned by the employer personally and against signature at least two months before the dismissal. During these two months, the employee continues to work and receives wages in the general manner.
After two months, already immediately upon dismissal, in accordance with Article 178 of the Labor Code of the Russian Federation, the employer is obliged to pay severance pay in the amount of the average monthly earnings. This payment is considered to be the preservation of the employee's earnings for the first month after the dismissal.
If the laid-off employee does not get a job within the first month after the dismissal, the employer has an obligation to keep him average earnings two months after leaving. The average salary for the second month is paid to the employee in the second month (since upon dismissal it is not known when the laid-off employee will be able to get a job). new job). Moreover, if the employee gets a new job in the middle of the second month after the dismissal, then the old employer pays him the average salary only for that part of the second month during which the employee did not work.
If an employee is registered with the employment authority within two weeks after the dismissal for a reduction, and despite this, he could not get a new job within two months after the dismissal, the old employer retains his average earnings for the third month after the dismissal (payment rules the same as for the second month).
Article 180 of the Labor Code of the Russian Federation establishes the possibility of the employer and employee to agree to terminate the employment contract in connection with the reduction before the expiration of the two-month warning period. In this case, the employer is obliged to pay the employee a lump sum (upon dismissal) in the amount of the average earnings for the entire period remaining until the expiration of the two-month period, plus a severance pay in the amount of the average earnings for one month. Saving earnings for the second and third months after dismissal in this case occurs according to the general rule.
Is it possible to apply to the Employment Center with only registration in hand?
According to Article 31 of the Law of the Russian Federation "On employment in Russian Federation”, the decision to grant unemployment benefits is made simultaneously with the decision to recognize a citizen as unemployed. In accordance with paragraph 2 of Article 3 of the Law on Employment, the decision to recognize a citizen registered in order to find a suitable job as unemployed is made by the employment service at the place of residence of the citizen.
We are talking specifically about the place of residence, and not about the place of registration (registration), therefore, in case of a refusal, you have the right to demand that the refusal be issued in writing and appeal against it in court or in a higher authority (employment department for the constituent entity of the Russian Federation).
Please note that registration at the place of stay and residence is only provided federal law a method of registering citizens within the Russian Federation, which is of a notification nature and reflects the fact that a citizen is at the place of stay or residence, which cannot serve as a basis for restriction or a condition for the exercise of the rights and freedoms of citizens.