What to do if you are laid off from your job. Retrenchment of an employee – procedure and rules for retrenchment. Personnel documents are filled out with errors

In accordance with Article 81 Labor Code In the Russian Federation, a reduction in the number or staff of employees is one of the grounds for termination of an employment contract at the initiative of the employer. To dismiss an employee on this basis, the employer is obliged to follow a certain algorithm of actions established by labor legislation. At the same time, organizations are emerging certain responsibilities before the employee, knowledge of which will be useful for each of the parties to the employment contract.

Roman Larionov,
legal advisor at Garant company

Reduction as deliverance

The decision to reduce positions is made by the employer. The reasons for this can be very different ( economic situation organizations, etc.). Of course, sometimes employers try to get rid of employees they don’t like in this way, forgetting that it’s not a specific person who is being laid off, but the position in which he works. Some make a “fictitious” job reduction, fire the employee, and then introduce a new staffing table in which the reduced position (sometimes with a different name) is actually present. However, employers do not take into account that the employee, having learned about this, can go to court to protect his rights.

It is safe to say that the court will rule in favor of the employee. This, for example, is evidenced by the Determination of the Judicial Collegium for Civil Cases of the Omsk Regional Court dated May 23, 2007 N 33-1597, which overturned the decision of the trial court and sent the case for a new trial. In resolving the dispute, the court of first instance did not take into account that after the dismissal of the employee, the next day the employer began to implement a new staffing schedule, according to which the number of employees not only did not decrease, but increased, and the wage fund also increased. At the same time, new positions appeared in the staffing table and additional units of previously existing positions were introduced.

In cases of reinstatement at work, the employee has the right to submit an application to the district court within one month from the date of delivery of a copy of the dismissal order or from the date of issue of the work book (Article 392 of the Labor Code of the Russian Federation). We can conclude that within a month after a reduction in the number or staff of employees, the employer actually cannot introduce new staffing units.

Provide another job

By virtue of Part 1 of Art. 180 of the Labor Code of the Russian Federation, upon dismissal due to a reduction in the number or staff of employees, the employer is obliged to offer the employee another available job (vacant position) in accordance with Part 3 of Art. 81 Labor Code of the Russian Federation.

Part 3 Art. 81 of the Labor Code of the Russian Federation determines that dismissal due to a reduction in the number or staff of employees of an organization, individual entrepreneur allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job) that the employee can perform taking into account his state of health. In addition, according to paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by courts Russian Federation Labor Code of the Russian Federation" (hereinafter referred to as Resolution No. 2), when deciding on the transfer of an employee to another job, the employer must also take into account the real ability of the employee to perform the work offered to him, taking into account his education, qualifications, and work experience.

In case of such dismissal, the employer is obliged to offer the employee all vacancies that meet the specified requirements, available to him in the given locality or in other localities, if this is provided for by the collective agreement, agreements, or employment contract.

Failure by the employer to fulfill the obligation to provide another job suitable for the employee is a violation of the dismissal procedure and entails the latter’s reinstatement at work in his previous position.

For example, by Resolution of the Ryazan Regional Court dated October 11, 2006 N 33-1459, due to the employer’s violation of the dismissal procedure, the employee was reinstated in his previous position. In particular, the court found that “the defendant offered the employee positions that he could not occupy due to qualification requirements (availability higher education, work experience in the specialty, etc.), and vacant positions were not offered for which other employees were hired during the period from 10/25/2005 to 06/08/2006, in particular, the positions of driver, cylinder filler, painter , grinder, sandblaster. At the court hearing, the defendant’s representative did not deny this circumstance and did not present evidence confirming the impossibility of transferring the plaintiff to one of the listed positions.”

It should be noted that paragraph 23 of Resolution No. 2 provides that when considering the case of reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.

Warned in time?

Part 2 Art. 180 of the Labor Code of the Russian Federation establishes that the employer is obliged to warn employees about the upcoming dismissal due to a reduction in the number or staff of the organization’s employees personally and against signature at least two months before the dismissal. From the above, we can conclude that every employee dismissed on the basis under consideration must be warned about this personally and in writing. As you can see, the norms of the Labor Code of the Russian Federation establish only a minimum notice period (two months), therefore, an employee can be warned for a longer period, for example, three months or more.

Compliance with the deadlines for warning about the upcoming layoff is a very significant basis in the established procedure for dismissal.

For example, the Determination of the Judicial Board for Civil Cases of the Omsk Regional Court dated May 16, 2007 N 33-1502 explains that the court of first instance reasonably came to the conclusion that the employer did not comply with the established Part 2 of Art. 180 of the Labor Code of the Russian Federation, a two-month warning period for the employee about the upcoming dismissal due to staff reduction, since he was notified of the dismissal on 04/03/2006, and dismissed on 05/31/2006. Consequently, the employer did not comply with the procedure for dismissing the plaintiff established by the Labor Code of the Russian Federation under clause 2 of Art. . 81 of the Labor Code of the Russian Federation, and, accordingly, the court of first instance justifiably reinstated the employee in the position of worker of the duty team production department from 05/31/2006. At the same time, the average earnings for the entire period of forced absence were recovered from the employer in favor of the employee.

However, with the written consent of the employee, the employer has the right to terminate the employment contract with him before the expiration of the two-month period, paying the employee additional compensation in the amount of average earnings for the time remaining before the expiration of the notice of dismissal. In this case, the employee also retains the payments provided for in Art. 178 Labor Code of the Russian Federation. He is paid severance pay in the amount of average monthly earnings and retains the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).

For some categories of employees, other notice periods for upcoming dismissal have been established. In particular, employees who have entered into an employment contract for a period of up to two months must be notified of their upcoming dismissal at least 3 calendar days in advance (Part 2 of Article 292 of the Labor Code of the Russian Federation), and seasonal workers - at least 7 calendar days in advance. calendar days(Part 2 of Article 296 of the Labor Code of the Russian Federation).

Are there any privileges?

At the same time, termination of an employment contract when the number of employees is reduced is possible only on the condition that the employee does not have a preferential right to remain at work (Article 179 of the Labor Code of the Russian Federation).

As a general rule, a privileged position is reserved for workers with higher labor productivity and qualifications. These employees are considered more valuable, and they can only be fired as a last resort. If labor productivity and qualifications of workers are equal, preference in remaining at work is given to family persons who support two or more dependents, persons in whose family there are no other workers with independent earnings, workers who received a work-related injury or professional injury while working for a given employer. illness, disabled people of the Great Patriotic War and disabled people from military operations in defense of the Fatherland, as well as workers who improve their skills at the direction of the employer without interrupting work. At the same time, the employer retains the right to provide for other categories of privileged workers in the collective agreement.

The Labor Code of the Russian Federation establishes several categories of workers who cannot be dismissed due to staff reduction. These include pregnant women, women with children under three years of age, single mothers raising a child under fourteen years of age (a disabled child under eighteen years of age) and other persons raising these children without a mother (Article 261 of the Labor Code of the Russian Federation) . Dismissal due to staff reduction of an employee under 18 years of age, in addition to compliance general order, is permitted only with the consent of the relevant state inspection labor and the commission on affairs of minors and protection of their rights (Article 269 of the Labor Code of the Russian Federation).

Notify government agencies

Staff reduction can include either one position or an entire department or division. In any case, when making a decision to reduce the number or staff of an organization’s employees and possible termination employment contracts with employees, the employer is obliged to inform the employment service authorities about this in writing no later than two months before the start of the relevant activities and indicate the position, profession, specialty and qualification requirements to each of the laid-off workers, as well as the conditions of payment for their labor. If a decision to reduce the number or staff of an organization’s employees may lead to mass layoffs of workers, the employer shall notify about this no later than three months before the start of the relevant measures. This obligation is established by Part 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 “On employment in the Russian Federation”.

The criterion for mass layoffs is established by the Regulations on the organization of work to promote employment in conditions of mass layoffs (approved by Resolution of the Council of Ministers - Government of the Russian Federation dated 02/05/93 N 99). The main criterion is the number of employees being laid off due to a reduction in the number or staff of employees for a certain calendar period. For example, a mass layoff can be considered if the following are fired on this basis: 50 or more people within 30 calendar days; 200 or more people within 60 calendar days; 500 or more people within 90 calendar days.

As you can see, when dismissing on the grounds in question, you must be extremely careful and follow the procedure established by law, because if the dismissal is declared illegal, the employee will be reinstated in his previous position, and the employer may be required to pay the average salary for the entire period of forced absence or the difference in earnings for all time spent performing lower-paid work.

This is a long and very responsible process for any employer. Because it involves notification of persons subject to layoff two months before the date of its implementation, as well as payment to them of all due funds, which must be issued on the last day of work. In addition, the employer must offer available vacancies to this category of subordinates, and also not allow the hiring of new people.

Preparing for downsizing

Before carrying out layoffs due to staff reductions, the employer must fulfill several conditions:

Change the existing staffing table or approve a new one, which would show the impossibility of expanding the staff beyond the positions assigned to it;

Notify subordinates about this 2 months in advance;

Offer workers other vacancies that are available in the organization;

Notify employment authorities within the period specified by law.

If a citizen already knows in advance that there is a layoff at work and that he is subject to it, then he can immediately discuss this issue with his manager. After all, you can receive all the necessary payments earlier than two months and quickly find a new vacant position, if, of course, you can’t stay in your current position.

Laying off due to redundancy is expensive

In reality, dismissal of employees due to staff reduction is not only a time-consuming, but also not a very cheap procedure. The boss needs to pay people not only wages and compensation for vacation that was not used, but also severance pay for two months. In addition, if a citizen, after being laid off, is not employed no later than ten days from the date of his dismissal, then in this case he will receive a cash benefit from the previous manager for the third month. That is why many employers try to make their subordinates subject to dismissal due to at will. Then you won’t have to pay them so much money.

If there is a layoff at work, but the boss still forced the unwanted employee to leave of his own free will, such dismissal can be appealed in court. Only for this you will need testimony and documentary evidence of this fact. Otherwise, it will be simply impossible for a subordinate to be reinstated at work and receive all the money due.

Notification

The manager warns the employee about the upcoming layoff 2 months in advance. The notice is drawn up in writing and handed to the person against signature. Otherwise, the employee will not be considered aware of the upcoming dismissal, which may subsequently cause his boss big troubles, even leading to litigation.

In a situation where there is a layoff at work, the employee’s rights should not be infringed by his boss. The latter is obliged to offer the former all available vacancies, which may be specified in the notification itself.

The redundancy notice looks like this:

00.00.00 _______________

Dear __________________ (employee’s full name)!

We notify you that due to staff reductions, the position you hold _____________ is subject to reduction __________ (the number taking into account two months from the specified date of notification).

We offer you a choice of available vacancies ______________ (name of vacancies). If you agree to work in a different position, please inform the HR department of the organization (name) to the HR specialist in writing before the expiration of a two-month period from the date of receipt of the notification.

Sincerely, Director of LLC ________________ (signature transcript).

From the moment the subordinate was notified of the upcoming reduction, a two-month period begins to expire, after which he is subject to dismissal with all payments due to him, unless, of course, he agrees to another proposed vacancy.

Payments

When dismissing a person on the basis of clause 2 of part 1 of Article 81 of the Labor Code of the Russian Federation, the manager must pay him in full and pay:

Salary for the entire period of work.

Compensation for vacation if it was not used. If the employee has already been on vacation, but the period has not been fully worked out, then in the event of a reduction, deductions from his salary are not made for this.

In the amount of two months' earnings. If, after dismissal, an employee applied to the employment authorities, but was not employed, he retains this earnings for the 3rd month. In this case, you need to provide the former management with your work book or a certificate from the employment center that he is registered with them.

Full payment to the employee must be made on the last day of his work, otherwise this will be a violation of Article 140 of the Labor Code.

Right to keep your job

If there is a layoff at work, then only those persons with the highest labor productivity and qualifications have a priority right to retain their jobs.

In the case where all employees have the same productivity and high qualifications, preference should be given to the employee who:

Has two or more dependents to support, for whom the salary this person is the main source of existence;

Is the sole breadwinner of the family if none of its members has a job or other income;

Received an illness while working or another serious injury in this organization;

Is disabled Great Patriotic War or a disabled person who was injured during the defense of the Fatherland;

Increases his level of education in the direction of management without interruption from work.

Paperwork

After all the measures taken related to dismissal due to staff reduction, the moment comes when the employee must be given the work book and all the payments due. After this, he must sign the order confirming this fact.

When preparing an order, the organization’s personnel specialist must indicate in it the exact wording of the grounds for dismissal, indicating the paragraph, part and article of the Labor Code. After this, fill out the work book, put your signature on it and certify all this with the seal of the organization. The entry in the employment record should be as follows: “Dismissed due to staff reduction on the basis of paragraph 2 of part 1. Other wording is not used, because the citizen is dismissed from work due to reduction, and not due to other circumstances.

All documents related to the person’s performance of his labor activity, as well as all documents required for him cash, must be issued to the employee on the day of dismissal.

Inadmissible moments

At a time when there is a layoff at work, it is unacceptable to accept new people into existing vacant positions. This would be a serious violation on the part of the manager, since he should offer these vacant positions only to persons who are at risk of dismissal on this basis. The level of education of workers does not matter in this case.

It is unacceptable, in the final financial calculation, to deduct from an employee’s salary for annual leave that has already been granted, if 12 months have not been fully worked out.

In a situation where there is a layoff at work, the employee’s rights cannot in any way be infringed upon by management. This primarily applies to timely payments, otherwise the dismissed person may seek protection from the judicial authorities.

Contacting employment authorities

After the employment contract with an employee has ended on the basis of dismissal due to staff reduction, the citizen has every right and is even obliged to contact the employment authorities within 10 days from the date of his payment. In this case, he will retain his average earnings for the third month.

The employment service, in turn, should help the unemployed find a vacancy that interests him. As a rule, for those who want to work, a good and suitable job. Reduction in staff as a basis for subsequent dismissal labor activity does not affect in any way, but at the same time it gives the opportunity to a person registered with the employment authorities to receive the maximum amount of benefits due for unemployment.

Job search

But sometimes the employment service does not provide attractive vacancies, so you have to go looking for them yourself. At the same time, you need to spend a lot of effort to find a truly interesting and paid position.

Finding a suitable vacancy is always morally difficult. This is especially difficult if the fired person has been laid off. Finding a job in this situation is further complicated by the fact that a place with a decent salary is difficult to find. That is why many citizens who are subject to layoffs try to remain in their previous place, even in a different position and with a lower salary. This is better than being unemployed later and receiving a small benefit from the employment center.

A good job after a layoff will most likely go to someone who has extensive experience in their profession and is actively looking for a new vacant position.

Illegal reduction

In practice, there are cases when employers try to get rid of annoying subordinates by any means. In this case, methods such as illegal or “imaginary” reduction are also used. In this case, no measures indicating preparation for dismissal are carried out by the manager. The employee is simply verbally warned that his position will be reduced, and is given a period of two months to look for another job.

In the event of an illegal layoff, no payments other than wages are made to the citizen, although they are written down on paper. At the same time, few people turn to the courts to protect their rights, although such cases occur quite often.

Arbitrage practice

Court hearings between a subordinate and his employer are not uncommon in modern justice. Moreover, the law almost always stands on the side of the employee, and not his boss.

Let us give an example from judicial practice to illustrate the situation.

The citizen worked as a foreman at a factory. After the manager changed, he started having problems at work. The new boss wanted to place another person in this position, but he could not fire the employee, there was no reason. Then the HR specialist advised the management to carry out an “imaginary” reduction procedure, about which the foreman should be notified 2 months in advance. However, no other vacant positions were offered to the latter, and he was fired. And another person was quickly hired to take this place. Having learned about this, the former subordinate filed a lawsuit against his boss.

It follows from the court decision that if there is a reduction in staff at work, the citizen subject to it must be offered another available position. In this case this was not done. Moreover, it did not turn out staffing table, indicating a decline in this profession. In this regard, the judicial authority satisfied the latter’s claim and reinstated him at work, in addition, recovered a sum of money from the employer to compensate for moral damage.

In case of violation of norms labor legislation An illegally dismissed person has the right to reinstatement. Reduction and subsequent completion labor relations in this case, they can always be appealed through the courts.

During a series of measures to reduce staff or the number of employees, many issues may arise that require resolution in accordance with the procedure and conditions for dismissal of employees. The most common questions: how is an employee dismissed due to job reduction? How and what are payments made? What is the role of elected trade union bodies?

The dismissal of an employee due to a reduction in position occurs in a certain order

Indeed, dismissal due to job reduction is a complex process that occurs in a certain order. So, the main issues of staff reduction and layoffs.

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

According to general rules, the staffing and structure of the company 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 reinstatement of employees whose employment contract was terminated due to changes in the staffing table, the reasons for the reduction of position are clarified in court.

The same applies to whether the procedure for reducing the position was followed. Otherwise, the employee has the right to sue the employer.

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

orders from the boss)
orders)
notice of termination of TD)
extracts from the staffing table)
documents on reduction of the wage fund.

This data will allow the court to figure out whether staff reductions actually took place and what opportunities were provided to employees (vacancies or transfers, generous compensation payments etc.).

In the event of a layoff, who is fired first?

When the decision is made to reduce the number or workforce, it is necessary to eliminate vacant positions before reaching the working people. Only after this can reductions be made at the expense of employees.

It should be noted that the candidacies of employees subject to dismissal 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 strictly 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 a priority to stay at work.

According to Article 34 of the Labor Code, workers with higher qualifications and labor productivity are kept at work when the number of employees is reduced.

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

documents indicating education,
work experience data,
work experience in this specialty,
quality of fulfillment of official obligations,
belonging to a certain qualification group,
incentives, awards, etc.

The manager also has the right to appoint a human resources specialist to conduct employee assessments. This will allow you to judge employees unbiasedly and make decisions based on professionalism rather than personal preferences. So, preference is given to the following categories of workers:

employees with families)
persons with dependents)
breadwinners of the family)
employees with extensive work experience in this organization)
workers with work-related injuries received at this production)
employees who are improving their qualifications and working at the same time)
disabled people of WWII)
inventors)
family members of military personnel)
people who have suffered radiation sickness (victims of the Chernobyl accident).

These categories of people who have a preferential right not to be fired during layoffs are absolutely equal. The state does not provide for other categories of beneficiaries. However, if a beneficiary fits 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 by the collective agreement, if any, may be taken into account. It should be noted that this right can be exercised after the administration has considered all preferences for remaining at work.

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

If there are grounds for reducing the position and the order is signed, the valuable employee may be transferred to another vacant position. Yes, by decision Supreme Court RF, the administration, in the event of staff reduction measures, can rearrange 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 an employee due to reduction if his position is retained in the staff list.

Who is prohibited from being fired?

The Labor Code considers job reduction as completely legal. However, please note that not all employees can be fired easily. Thus, pregnant women, as well as employees with children under three years of age, cannot be considered as candidates for dismissal. Also, employees with disabled children and 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 period of staff reduction.

The exception is the complete cessation of the existence of the company. In this case, all employees are subject to dismissal, regardless of the availability 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 subject to dismissal does not have the advantage of being retained in the position in comparison with other employees with the same productivity and qualifications. Also, an employee is subject to dismissal if he is laid off if he cannot be provided with an alternative place of work.

Transfer or employment opportunities

After candidates for layoffs have been reviewed and a list of employees subject to dismissal has been compiled, the administration must offer the employee to take another vacant position upon layoff. According to Article 40 of the Labor Code of the Russian Federation, an employee must be offered another job simultaneously with notification of being laid off and forthcoming dismissal. Also, no later than a couple of months in advance, the administration is obliged to inform the employment service about the dismissal of employees. In this case, it is necessary to submit data for each employee indicating:

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

The union must be notified of the mass layoff at the same time as the employment center.

An order form for job reduction must be prepared. Afterwards, all employees should be notified by posting an announcement on the stand. Regardless of whether employees are laid off or not, they should be aware of the upcoming reduction in staff.

Each employee is warned individually, against signature, of the upcoming dismissal two months earlier. In case of refusal to sign the warning paper, the boss 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 payment during the period of his illness or vacation, but the employee can be fired only after he returns to work. After notice of dismissal, the specialist is obliged to work for the remaining two months in compliance with all internal rules. In case of violations labor discipline an employee may be dismissed earlier due to an article that is “unfavorable” for his future career.

The notice period for dismissal is established in the interests of the employee, so he can submit a petition to the administration to reduce the period if he has found another job and wants to begin fulfilling his new duties. If the administration does not insist that the employee continues to perform his duties, he can be paid ahead of schedule upon application with the provision of all guarantees and compensation payments.

It should be noted that the application requesting early dismissal must be drawn up correctly. Otherwise, the employee may be fired “at his own request” and deprived of all the benefits he is entitled to.

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

Dismissal due to job reduction

If available positions are not offered upon dismissal, it is imperative to draw up an act indicating the absence of alternative vacancies. Otherwise, the employee may 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 available vacancies, including those that are below the employee’s qualification level or have lower pay.

Only after the employee refuses to take advantage of the boss’s proposals should it be calculated. It should also be noted that all available positions should be submitted for consideration by the employee in order to avoid problems in the future.

Most best option dismissal in case of layoff - transfer to another place. When a position is reduced, the conditions of dismissal do not allow the employee to remain, since otherwise he will have to take the place of another person, which is not legal. Although previously the law provided that the administration could retain employees with the highest qualifications and labor productivity in the organization and form staff from them, now these actions are illegitimate. Employees must be aware of all changes to the staffing table.

If translation is not possible

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

Dismissal under Article 33 of the Labor Code of the Russian Federation is possible only if a transfer is impossible or if the person does not agree to work in another place. The contract was concluded between the employee and the organization, therefore all vacancies that are available in the organization, and not just in the structural unit where the employee worked, must be offered.

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 took a job that corresponded to his education and qualifications. Based on this, he can be offered a position that matches his qualifications.

If there are no suitable vacancies, the administration is obliged to present the employee with a lower-paid job in his specialty. Management is obliged to select and offer positions to the dismissed employee during the entire period from the notice of layoff to the day of payment. If the matter comes to legal difficulties, and it turns out that the administration did not offer the employee an available suitable vacancy, the dismissal will not only be considered unlawful, but the organization itself will have to pay the plaintiff:

legal costs)
compensation for moral damage)
money that could be his wages in an unoffered position.

The role of the trade union

This body protects the rights of workers and controls the legality of the administration’s actions regarding them. Representatives of the trade union committee answer questions about job reduction and dismissal due to staff reduction, and also check whether the article under which the employment contract is terminated in these cases coincides.

An employee can be fired only with the permission of the trade union body. This rule applies to union members. This body does not have powers in the event of dismissal:

head (manager) of an organization or branch)
deputy chief)
senior staff)
elected employees)
persons approved or appointed to a position state power(government bodies) and public organizations.

If the trade union body does not allow the employee to be dismissed, then this decision is communicated to the administration. Next, consultations between the trade union committee and the company management will be held, as a result of which either the employee will be kept at work or the case will be resolved in court.

Last day of work

On the day of dismissal, the manager is obliged to issue the employee a work book. The person being dismissed must fill out forms, which will later be transferred to the archive. In the event of a delay in issuing a work permit due to the fault of the administration or boss, the employee will receive compensation in the amount of average earnings for the period of “absenteeism”, in accordance with Articles 39, 98, 99 of the Labor Code of the Russian Federation.

If the delay in issuing the work book (the fault of the employer) is associated with undesirable consequences for the employee, he has the right to demand that the administration of the establishment change the date of dismissal. If refused, the employee may go to court.

Compensation

What is paid upon dismissal due to job reduction? First of all, as in any case of dismissal, it is necessary to pay the settlement amount. They consist of the following components.

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

reduction in the number of employees)
staff reduction)
reorganization occurred as a result of the merger of companies or the merger of branches, etc.

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

maintaining the average salary for the period of employment (no more than two months))
salary for the third month without work, if his request to find a job is not satisfied by the employment service)
other material compensation.

Payment of settlement money is carried out at the place of employment. It is provided upon presentation by the employee of a work book. In order to receive financial payments in the future, you must register with the employment service as a temporarily unemployed person. If the break in work does not exceed three months, the employee retains the right to receive continuous work experience.

The notification form for job reduction is a mandatory element of any reduction.

If a laid-off employee contacts the employment service on time, he can count on extending his work experience in the future, for the period of receiving a scholarship or unemployment benefit when performing paid public work.

Maintaining a continuous work history is important for a person who wants to find a job. In addition, it is this indicator that will determine the size of unemployment payments. This can help in the future with remuneration (percentage bonuses, one-time remuneration based on length of service, etc.).

If a dismissed employee was refused help when contacting the employment service, he may be granted early retirement (only with his consent). It is assigned provided that the employee has the required length of service for retirement due to old age (this also includes receiving preferential payments as an increase in pension). The employee is guaranteed, even after dismissal, to maintain a waiting list for housing and the opportunity for his family to use child care and medical institutions.

Allotted leave or financial compensation thereof

It should also be remembered that upon dismissal due to a reduction in position, the employee has the right to spend the vacation allotted to him by law. If the director cannot provide the dismissed employee with leave, this will have to be settled financially. So, the first step is to provide compensation in the form of a material bonus corresponding to the amount of vacation pay.

During the vacation period, “health” bonuses 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

What rights do employees dismissed as a result of staff reduction have, and what are the benefits of this type of dismissal?

What is staff reduction?

Staff reduction is a reduction in the number of employees on the initiative of the enterprise management. Typically, an employer reduces its workforce when it is unable to pay them wages. This often happens during a financial crisis, but even in calm times you can get laid off.

Good to know!

The employer is obliged to warn employees about the upcoming layoff at least two months before dismissal, in writing and against signature.

Important!

The employer does not have the right to reduce:

Pregnant
women with children under 3 years of age
single mothers raising a child under 14 years of age or a disabled child under 18 years of age

If the layoff is illegal

The dismissal procedure for layoffs is not simple, and employers often make mistakes: they fire those who are not allowed, fill out documents incorrectly, violate notice periods... In any of these cases, you can go to court and be reinstated at work. But, if you quit voluntarily under pressure from your boss, you won’t have to count on reinstatement.

Downsizing is profitable!

Dismissal due to reduction is considered one of the most beneficial - for the employee, but not for the employer. The law obliges him to compensate the laid-off employee for damages, or rather, to pay compensation. And in order not to pay compensation, employers, when reducing staff, often ask subordinates to write a statement of their own free will.
If you understand that you are actually being prepared for layoffs, it is in your interests not to allow a staging of “your own desire”, but to ensure compliance with the entire dismissal procedure for staff reduction. In this case, the employer will be required to do the following.

STEP 1

Offer you another available position at your company. If your qualifications are higher than required, the employer is obliged to make such an offer, but if it is lower, alas.

STEP 2

If you refuse the offered position, the employer is obliged to compensate you material damage from job loss.

Firstly, the law guarantees you at least one month of comfortable living at the expense of your previous employer. After dismissal, you must be paid severance pay in the amount of your average monthly earnings.

Secondly, if you do not get a job within a month, you must be paid the average wages and for the second month.

Thirdly, in some cases, you will be able to receive a salary for the third month after dismissal. To do this, you must register with the labor exchange for employment within 14 days after dismissal. If within three months from the date of dismissal the exchange does not find another job for you that matches your qualifications, the administration of the exchange will oblige your former employer to pay you another salary. However, it is important to understand: you will be paid a third salary only if there really is no job suitable for you on the stock exchange. If you simply refuse vacancies that suit you, you will not only not receive a third salary, but you may also be kicked out of the labor exchange.

BY THE WAY

If you join the labor exchange on time after your layoff, you will have continuous work experience for three months after your dismissal.

Calculation rules

The day of dismissal is considered the last day of work. It is on this day that the employee should be given money and documents, in particular employment history. If the employer violates the terms, you have the right to sue him. Then, in addition to the settlement, you will receive monetary compensation for each day of delay. However, usually one hint of a complaint to the Labor Inspectorate is enough for the employer to pay the employee as expected.

Downsizing “spoils” labor

There is an opinion that employers do not like to hire people who have been laid off due to layoffs. They say that if you were fired due to reduction, it means that you were the least valuable employee.

In fact, this is nothing more than a fairy tale invented by employers who do not want to pay severance pay to people laid off due to layoffs. After all, this is a considerable expense for the organization. As for the new employer, your work experience and desire to work will be much more important to him than the reason for dismissal.

Working in a crisis

To avoid being fired, try following some rules:

Show hard work

To demonstrate your hard work to management, you will have to work tirelessly. You will have to stay late at work if you are asked to finish something or do work that is not yours. If you want to keep your job, you will have to accept any job. There is hope that out of two employees you will be chosen.

Don't be late

If earlier you could afford to be late for work or stay late for lunch, now you shouldn’t do this. All this is a reason to find fault with you and fire you.

Remind yourself of your importance

Think about what exactly you did for the company: you signed an important contract, exceeded the plan more than once... And unobtrusively mention this at every opportunity in conversations with colleagues and management. There is no need to be modest, there is no need for it now. Management is not obligated to remember the achievements of all employees, and it would be a good idea to remind them how valuable you are to the company.

Exercise self-control

Having learned that layoffs are coming in the company, you should not pay too much attention to this fact, much less come to your superiors to press for pity, or whisper with colleagues on the sidelines. It is better to devote maximum time to work - your superiors will appreciate it.

Be prepared to compromise

Hot temper, inflexibility, conflict - these qualities will not play into your hands during a crisis at work. It is now no less difficult for the manager than for the subordinates. And no one wants to waste their nerves on an obstinate employee. Try to curb your temper and make it comfortable to work with you. Be calm and friendly at work. Show with all your appearance that you know your business and this is the main thing for you.

Termination of employment contracts with employees due to staff reduction is a fairly common event, however, conducting a fictitious procedure solely for the dismissal of specific employees may entail adverse consequences for the employer. From a legislative point of view, the issue of fictitious reduction of staff or position of an employee may be the basis for declaring the dismissal illegal, subsequent reinstatement of the employee in his position and payment of compensation to him. Arbitrage practice on a fictitious staff reduction fully confirms this thesis - therefore, all parties to the labor relationship should know exactly their rights and obligations during the termination of the employment contract.

Fictitious staff reduction and legal framework - what is said in the Labor Code of the Russian Federation

Current legislation quite strictly regulates issues related to the dismissal of employees due to layoffs. At the same time, taking into account the wide possibilities of the employer to use this basis for terminating employment relationships with employees, this procedure requires special control from the state and supervisory authorities.

In particular, a fictitious staff reduction, if discovered, will clearly be considered a violation of current legislation and the rights of the employee. Therefore, first of all, in the event of a reduction, the parties to the relationship should familiarize themselves with the following regulations in force on Russian territory:

Art. 77 Labor Code of the Russian Federation. The principles set out in this article regulate most of the existing possible grounds for carrying out the dismissal procedure, and among them there is also dismissal at the initiative of the employer - reduction of staff or positions is a type of such dismissal.
Art. 81 Labor Code of the Russian Federation. This article directly addresses issues relating to when and how an employer can dismiss employees on its own initiative. One of the reasons for this is a reduction in staff.
Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2 of March 17, 2004. This regulatory document explains the use by courts general practice provisions of the above Art. 81 of the Labor Code of the Russian Federation in matters of layoffs of employees and, in particular, indicates the employer’s obligation to prove the fact of a real reduction in the number of staff or positions.

It should be noted that before considering the issue of fictitious reduction of staff or position, it is necessary to understand that this procedure can also be divided into two different activities:

Staff reduction. In this case, changes are made to the enterprise's job schedule in relation to the number of employees employed in existing positions and those provided for by internal regulations or other local regulations, but the list of positions itself remains unchanged.
Reduction of positions. In such a situation, the employer changes the job description, which may include the abolition of certain positions or even entire ones. structural divisions enterprises.

The employer is obliged to prove the fact of reduction of positions or staff numbers, but is not obliged to explain to the judiciary, the trade union, the employees themselves or other persons the reasons for the reduction of staff. He has the right to independently make decisions about the need for a reduction procedure and its goals.

As can be understood directly from the provisions of the Labor Code, the concept of fictitious staff reductions is not directly considered by it. At the same time, judicial practice on fictitious reduction of staff, as well as the resolution of the Supreme Court of the Russian Federation, provides for the responsibility of employers for such a procedure, therefore, when carrying out a reduction, both the employer and the laid-off employees must take these features into account legal regulation the designated procedure.

What is a fictitious staff reduction and how is it determined?

By fictitious staff reduction we mean, first of all, carrying out this procedure in a situation where there is no actual change in the number of employees or positions at the enterprise. That is, when the purpose of dismissal is not to directly reduce the costs of the enterprise, optimization personnel policy or organizational issues, but only the desire to get rid of a specific employee or several employees. At the same time, clear signs of a fictitious reduction include:

Reduction of a position with the introduction of similar or similar responsibilities into the job schedule. In this case, for example, a reduction may involve the abolition of the position of a translator at the enterprise and, after the dismissal of an employee or even in the process, the creation of a position of a translator-linguist with similar responsibilities. Such actions are illegal and subsequently the employee will be able to challenge the job reduction procedure in court as fictitious.
The reduction in numbers is temporary. If an employee was laid off due to a decrease in the number of employees, and after his dismissal was hired for the same position new employee, then such a reduction can also be recognized as fictitious upon detailed consideration by the labor inspectorate or court. This is due to the fact that in this case the employer did not actually need to reduce the number of employees - after all, if such a goal had been present, a new employee would not have been hired to replace the employee being reduced.
Violation of the law. If the staff reduction procedure was not carried out properly, such dismissal may be considered illegal and challenged in court.
Failure to respect the right to preferential retention at work. When laying off workers, the employer should take into account the legal requirements regarding the preferential retention of certain categories of employees in the workplace. In particular, the employer is obliged to retain at work a worker who demonstrates greater efficiency at work or has better qualifications. However, a number of categories of citizens have broader rights to preferential leave - these include military veterans, the only breadwinners in the family and other persons with special rights.

How to carry out staff reduction correctly so that it is not recognized as fictitious

Accordingly, if the employer does not want to be held liable for a fictitious reduction, he should ensure that the above factors are not present. At the same time, a number of situations that in practice will not imply a fictitious reduction may also be accepted by the court as such. Therefore, when laying off an employee, it is necessary to follow a clearly defined procedure:

The decision to reduce positions or reduce the number of staff must be made and recorded in the internal document flow of the enterprise before the employee is notified of the dismissal and such a decision is made. Otherwise, the employee may challenge the entire procedure.
All decisions to reduce the number of employees or positions must also be reflected in local regulations. The employer is obliged to include information about the abolition of positions or reduction in the number of employees in the job description.
Changes in job regulations due to reorganization, changes in the number of employees or the list of positions must come into force before the actual dismissal of the employee, and not after it. Judicial practice regarding fictitious staff reductions in this matter takes the employee’s side, even if the reduction was real, but the change in the job schedule occurred a few days before the employee’s dismissal.
You should be very careful about new job descriptions for new employees and to the introduction of new positions in the enterprise. In addition, for six months after the layoff, the employer is not recommended to publish vacancies about the availability of jobs for the positions of workers laid off due to layoffs, or even simply to hire such specialists by invitation or transfer.
It is necessary to carry out the reduction procedure strictly in accordance with the procedure prescribed by law. That is, to ensure timely notification of the employee himself, the employment center and the trade union organization, to pay the employee all funds and compensation due to him, including severance pay, and also to take into account the requirements of regulations in relation to certain categories of employees. For example, pregnant women are not subject to layoffs at all.
All factors influencing the preferential retention of employees at work should be carefully taken into account. If it is violated, the employee can provide evidence of his higher qualifications - therefore, the employer should take care of drawing up a thorough package of documents confirming the correctness decision taken about layoffs of specific employees.

If it is necessary to fire a specific employee in order to avoid negative legal consequences, it is not recommended to use dismissal to reduce the employee. If an employee does not actually fulfill his duties, it is possible to dismiss him for disciplinary violations or inadequacy for the position held. In addition, an employee can always be offered dismissal at his own request or by agreement of the parties with the payment of additional compensation. In this case, you will not have to change your work schedule, job schedule or make changes to internal regulations enterprises.

Responsibility for fictitious reduction of employees

Russian legislation does not directly provide for the involvement of employers specifically for fictitious staff reductions. However, such a reduction is clearly a violation of the requirements of the current labor legislation, therefore, from the point of view of the Code of Administrative Offenses of the Russian Federation, in this case the provisions of Article 5.27 of the Code of Administrative Offenses of the Russian Federation apply. According to this article, wrongful dismissal is punishable by a fine, the amount of which can be up to 70 thousand rubles for legal entities.

Criminal liability for fictitious layoffs of employees can only occur in the following cases:

When a pregnant woman is fired. If an employer lays off a pregnant woman, he may be held liable under Art. 145 of the Criminal Code of the Russian Federation, since pregnant workers cannot be dismissed at the initiative of the employer in principle - the only exceptions are cases of direct liquidation of the organization.
In the event of a significant delay in the payment of wages, bonuses or other compensation due when an employee is laid off, including payment for unused vacation and severance pay. Such criminal liability for fictitious reduction is regulated by the principles of Article 145.1 of the Criminal Code of the Russian Federation.

If the court finds the dismissal illegal, the employer will also be obligated to pay him wages for all days from the date of dismissal until the court makes a decision. In addition, the employer may also be obliged to reinstate the employee in his position. The employee also has the right to demand moral damages for fictitious dismissal.