Dismissal in order of reduction. What is a reduction and who cannot be reduced by law. Personnel documents are drawn up with errors

31.03.2020

You work for yourself, you work, and then once - the boss announces a reduction in staff. Unfortunately, many have faced this situation.

Immediately there are many questions that require clarification. For example, what should be the payments to the employee in case of reduction? What is the legal way to fire an employee? Is it possible to reduce pensioners, pregnant women?

Your position is no longer needed

One of the first questions that arise when an employee is laid off is: “What payments do I have?”. This situation occurs in both large companies and small ones. By law, cuts must be announced at least two months in advance.

The employee must sign that he was notified on time. If the employee refuses to sign, then a special act is drawn up. If this rule is not observed, then a person can be reinstated in his position. As soon as the signatures are received, the enterprise is obliged to offer new vacancies that correspond to the specialty of the employee.

When the two-month period comes to an end, the employment contract is terminated and payments are made to the employee in case of staff reduction. He is given an allowance average salary. It is kept for the duration of employment (but not more than two months).

Reduction of the worker. Payouts. Labor Code

This topic is regulated by article 178 Labor Code RF. What she says:

An employee who has been made redundant is paid an allowance. Its amount is equal to the average monthly earnings.
On the day of dismissal, the company is obliged to pay the employee the entire wage arrears. As well as compensation for unrealized vacation.
Within sixty days after the reduction, the average monthly income is paid to the person.
If he applied to the employment service no later than two weeks from the date of dismissal, but did not find the right vacancy, then by decision of this body, the payment of compensation when the employee is reduced is extended for another month.
The issuance of money must be made on time, otherwise the dismissed person may challenge his rights in court.

More about amounts

So, what are the payments to the employee in case of staff reduction? First, it is financing in the form of average monthly income. It is paid within 60 days. Secondly, the allowance, which is issued immediately at the time of dismissal.

Thirdly, the manager is obliged to compensate for all salary arrears, as well as unused vacation. Fourth, in special cases, an employee may be credited with a two-week average income. This applies to moments when he does not agree to transfer to another service in cases considered in the legislation. Also, payments to the employee in case of reduction are carried out in connection with:

with his draft into the army;
with the restoration of the person who previously held this position (withdrawal from the decree or appeal through the court);
with refusal to move to another area;
with the recognition of his incapacity for work;
with refusal to work due to changes in the terms of the contract.

Here you need to remember that personal income tax is not withheld from the mandatory amounts. The enterprise is obliged to pay monetary compensation both in the event of the liquidation of the company and in case of violations in the preparation of the employment contract (if they were made through no fault of the employee).

Collective and individual agreements retain payments when an employee is laid off. The timing of the issuance of all due money is limited to the last day on which the employee is still registered with the organization. If there was a delay in payments, then for every day they are charged interest not lower than 1/300 of the refinancing rate of the Central Bank of the Russian Federation.

Law violation

The fact of illegal dismissal is often encountered in everyday life. The employer wants to save his money and can play on ignorance labor laws. The one who was reduced, having collected evidence of a violation of his rights, can always file a lawsuit with the court. The deadline for filing is thirty calendar days from the date of receipt of a copy of the dismissal order or the issuance of a work book. Valid reasons for being late when applying may increase the time for accepting a claim. Also, the reason for filing a lawsuit is the refusal to pay interest on the delay in the compensation due to the worker.

Conditions for a "correct" contraction

If the manager decides to reduce the staff of employees, then a number of rules must be observed:

The actual layoffs. AT staffing the organization is subject to dismissal. An order is also issued to approve the new schedule.
According to article 179 of the Labor Code, it is necessary to provide in writing a number of other vacancies that correspond to the qualifications of the employee.
According to Article 180 of the Labor Code, the boss must notify the employee no later than two months before the dismissal. The employee needs to sign that he was warned on time. The manager also approves a plan to communicate information about the reduction. In this case, a newspaper, bulletin board, meeting can be used.
The issue of dismissal should be considered by a selective trade union body. It consists of a lawyer, director of personnel, a representative of the trade union committee. An order is also issued on the fact of creating a commission.
According to the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004, the obligation to confirm the legality of the dismissal and comply with its procedure lies with the head of the organization.

Who can't be fired

Based on article 261 of the Labor Code, a pregnant woman cannot be reduced. In the case of her work fixed-term contract the enterprise is obliged to extend the agreement after the expiration of this period. A woman will only need a medical certificate confirming her position.

But it can be reduced in the case when it was registered with the organization during the absence of the previous employee, and there is no possibility of transferring to another vacancy. Also, women who have children under three years of age, and single mothers with a child under 14 or a disabled child under 18 are not subject to dismissal.

There is one caveat in the field of education. As regards the reduction teaching staff educational institutions, then this action is possible only after the end of the school year.

Useful subtleties

The calculation of payments for the reduction of an employee who is a part-time worker is not made. The reason for this is the presence of the main place of business.
A worker who has been made redundant is entitled to an early pension. At the same time, he needs to issue it no earlier than two years before the legal date.
If an employee has worked in the organization for less than six months, then compensation payments are still made for unused vacation when the employee is reduced.
Severance pay is not subject to unified social tax, pension contributions, personal income tax. As well as insurance contributions to the FSS. Compensation for unrealized vacation days is subject to personal income tax, but not UST.
If payments to an employee during a reduction are not made at the expense of budgetary funds, then they are taken into account as part of the costs of wages. Thus, the income tax is reduced (clause 9, article 255 of the Tax Code of the Russian Federation).
The employer can dismiss the employee without warning, while all payments must be preserved. An agreement of this kind, however, like all others, must be in writing. If the worker and the head of the organization did not come to an agreement, then the reduction should take place on a general basis.

Reduction of the worker. What payments are due? Calculation example

Let's take the following example. The employee began his career on 09/01/07 and was made redundant on 04/23/09 (received a notification from his superiors). He retired on June 24, 2009. For 12 months, the amount of salary amounted to 126 thousand rubles. Start of work in new organization- 05.09.09. We calculate the average earnings, the amount of benefits and compensation for unrealized vacation.

So, what is the procedure for payments when an employee is laid off?

First, we will calculate the due allowance. To do this, we divide the entire amount of the salary by 12 months and by the number of working days. We get an average earnings per day - 357.14 rubles. We multiply this figure by thirty calendar days and get 10,714.2 rubles.

Secondly, we calculate the amount that will be paid over several months. Since the employee did not get a new job in the first of them, the amount of the severance pay goes to the account of the retained average income. At the same time, the obligatory payment of average earnings during the second month is carried out. The amount of the benefit will be 11,071.34 rubles (average daily earnings are multiplied by 31 calendar days). There will be no payments for the third month, as the employee got a job in a new organization.

Thirdly, we will calculate the allowance for unused vacation. Based on the fact that the employee worked for ten months, compensation will be paid for 23.33 days. 28 vacation days multiply by the number of months worked (10) and divide by their number in a year (12). Multiplying the resulting figure by the average daily earnings, we get the entire amount of payments - 8,332.08 rubles.

Early termination of an employee

Article 180 of the Labor Code says that employees of organizations are notified of the reduction two months before it. In the same article there is a paragraph that says that the boss, in agreement with the subordinate, can terminate the employment contract without waiting for the declared date. All payments in case of early reduction of the employee are saved. But he will lose compensation if the basis for terminating the contract is a notice of dismissal by own will. Thus, in order for an early reduction to occur with all legal payments, the following must be done:

The manager draws up a proposal to the employee to cancel the employment contract before the official term of dismissal.
The employee writes a written consent to this proposal.

Compensation payments for the reduction of an employee are not made if the application says "I ask you to dismiss me of your own free will." Or there is a letter from a new leader with a request to be transferred to another organization. If the application states “I ask you to dismiss me in connection with the reduction of my position before the expiration of the term,” then the employer’s consent will be required.

Going to court

Since it is beneficial for the employer to dismiss an employee of his own free will, the latter may be subjected to psychological pressure. And this is a reason to go to court. Coercion to write a statement will need to be proven. When considering a labor dispute, the court pays attention to the following points:

What are the reasons for writing a statement - the employee's own desire or coercion.
What are the circumstances of its formation.
How clearly the appeal is written, the presence of the necessary details in it.
What are the intentions of the worker.
What is the procedure for dismissal.

If the court recognizes the termination labor relations illegal, then the manager is obliged to reformulate the grounds for dismissal, as well as to make all payments to the employee upon reduction. It is also possible to be reinstated in the previous position with monetary compensation for forced absenteeism.

Dismissal of an employee of retirement age

When laying off a retired employee, the following payments must be made:

Compensation for unused vacations.
Benefit.
Saving average earnings for the period of employment for no more than two months. If the organization is located in the Far North, then up to three.

If an employee falls ill while looking for a new job

The employee has the right to submit a sick leave to the manager or to the territorial body of the Social Insurance Fund within thirty days from the date of termination of the employment relationship. Sick leave is paid in the amount of 60% of the employee's average income.

Reduction under a fixed-term contract

According to Article 79 of the Labor Code, this type of contract is liquidated at the end of its validity period. The supervisor must inform the employee within three days and must be in writing. Seasonal workers must be notified seven days in advance. They are also entitled to an allowance in the amount of two weeks of the average wage. If the contract after the expiration date was reissued as open-ended, then the employee is subject to dismissal on a general basis.

This Instruction specifies the procedure for carrying out the procedure for dismissal to reduce the number or staff.

Dismissal to reduce the number or staff of the organization's employees is provided for in clause 2 of article 81 of the Labor Code of the Russian Federation.

All the activities listed below should be carried out after calculating and determining the optimal number of personnel of the enterprise.

GENERAL PROVISIONS

Downsizing means the abolition in the prescribed manner of one or more staff units for the relevant positions.

In order for the dismissal on this basis to be legal, the following requirements of the law must be observed:

the fact of downsizing really should take place;
the choice of employees dismissed due to staff reduction should be carried out taking into account the pre-emptive right to remain at work;
personal warning about the upcoming dismissal;
possible transfer of an employee (employment);
notification of the state agency on employment issues;
consent of the trade union body;
payment of severance pay.

PROCEDURE FOR DISCHARGING TO REDUCE THE NUMBER OR STAFF

1. The fact of downsizing

Reduction of staff is one of the measures to improve the work of the organization. Reduction of staff can be carried out both through the reduction of workers, and through the elimination of vacancies.

Confirmation of the fact of reduction of staff is:

1.1. Making appropriate changes to the staffing of the enterprise.

The new staffing table should provide for a real reduction in staff (it is impossible to simultaneously introduce a new position in the staffing table instead of a reduced position, for which a new employee has been hired).

1.2. Issuance of the Order on the approval of the new staffing table.

The dismissal procedure cannot be carried out before the approval of the new staffing table.

1.3. Formation of a commission for the reduction procedure.

The composition of the commission must include the director of personnel, a lawyer, a representative of the trade union committee. The number of members of the commission is _____ people.

1.4. Issuance of orders: on the reduction of staff (with the application of the justification for the need to reduce employees); about the formation of the commission.

1.5. Formation and approval of an action plan to inform the personnel of the enterprise about planned and ongoing activities using funds mass media, written or oral communication (incl. general meeting collective, bulletin board, newspaper, etc.)

2. Accounting for the pre-emptive right to remain at work

The choice of employees dismissed due to staff reduction should be carried out taking into account the pre-emptive right to remain at work (Article 179 of the Labor Code of the Russian Federation).

2.1. The preferential right to stay at work is granted to employees with higher labor productivity and qualifications.

As evidence of higher labor productivity, indicators such as performing a significantly larger amount of work compared to other employees, receiving bonuses and incentives, etc. are used. With equal labor productivity, those employees who have a higher qualification (level of education and compliance with qualification requirements imposed on a particular category of workers).

2.2. With equal labor productivity and qualifications, preference is given to:

persons in whose family there are no other self-employed workers;
employees who have received an industrial injury in this organization or Occupational Illness;
invalids of the Great Patriotic War and invalids of military operations for the defense of the Fatherland;
employees who improve their skills in the direction of the employer on the job;
family - if there are two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent or main source of livelihood.). Confirmation of permanent assistance to a family member (dependent) may be cohabitation or a document on the transfer of funds.

2.3. The collective agreement may provide for other categories of employees of the organization that enjoy the preferential right to remain at work with equal labor productivity and qualifications.

2.4. Dismissal of employees is not allowed:

during the period of his temporary incapacity for work and during his stay on vacation;
pregnant women, as well as women with children under the age of three, single mothers raising a child under the age of 14 (a disabled child - up to 18), other persons raising these children without a mother (Article 261 of the Labor Code of the Russian Federation);
under the age of 18, only with the consent of the relevant state authorities (Article 269 of the Labor Code of the Russian Federation).

2.5. It is necessary to take into account the increased guarantees for employees who are members of selective trade union bodies (Art. 374; Art. 375; Art. 405 of the Labor Code of the Russian Federation).

2.6. The analysis of the preferential right to leave at work is carried out on the basis of diplomas, work books, data on the implementation of labor standards, certification data, and other documentary evidence of the quality of work.

For each candidate for dismissal, an extract (personal file) is formed based on the documents listed above.

2.7. The Staff Reduction Commission considers the information submitted for each candidate for dismissal and makes a decision on the pre-emptive right to remain at work, which is drawn up in writing (Minutes, decision, etc.).

3. Personal warning about the upcoming dismissal

About the upcoming dismissal due to staff reduction, the employees of the organization are warned by the employer personally and against receipt at least two months before the dismissal (Article 180 of the Labor Code).

3.1. The employer, with the written consent (application) of the employee, has the right to terminate the employment contract with him without notice of dismissal for two months with the simultaneous payment of additional compensation in the amount of two months of average earnings.

(In this case, "additional" means in addition to the severance pay established by labor legislation).

It is mandatory to have an application with a request for dismissal with the date and personal signature of the dismissed employee.

3.2. The time of warning about the upcoming dismissal, as well as the consent of the employee to terminate the employment contract with him without warning of dismissal, must be documented.

The signature of each dismissed employee must be on the general order for the planned reduction or on separate order issued for this employee.

4. Employment of the dismissed employee (transfer)

The dismissal of an employee is allowed in connection with a reduction in the number or staff is allowed if it is impossible to transfer the employee with his consent to another job (Article 73 and Article 180 of the Labor Code.)

4.1. When carrying out measures to reduce the number or staff, the employer is obliged to offer the employee, in writing, another available job (vacant position) in the same organization that corresponds to the employee's qualifications (and not just performed taking into account qualifications).

4.2. In the absence of such work - a vacant lower position or lower-paid work that the employee can perform, taking into account his qualifications and state of health.

4.3. In the absence of such work (on the basis of the staffing table), as well as in the event that the employee refuses the proposed work, the employment contract with a particular employee is terminated.

It is obligatory to have a written refusal (act of refusal) of the dismissed employee to transfer to another job with the personal signature of the dismissed employee.

5. Consent of the trade union body

When dismissing employees to reduce the number or staff, the employer is obliged in writing not later than 2 months before the start of the events to inform the elected trade union body of the enterprise in writing about the upcoming reduction. In case of mass layoffs (criteria for mass layoffs are determined in industry and (or) territorial agreements) - no later than 3 months before the start of the events (part 1, article 82 of the Labor Code of the Russian Federation).

The procedure for taking into account the reasoned opinion of the trade union body when terminating the employment contract at the initiative of the employer is regulated by Article 373 of the Labor Code of the Russian Federation.

5.1. The administration sends a notice (letter) to the trade union organization about the planned measures to reduce the number of personnel, as well as a copy of the order to reduce the staff of the enterprise, as well as copies of the documents that are the basis for making this decision (staffing) documents are handed over against receipt.

5.2. The trade union body, within seven days after receiving the notification (documents), is obliged to consider this issue and send its reasoned opinion to the administration in writing.

5.3. The opinion of the trade union body that is not submitted within seven days or an unmotivated opinion (an unjustified position on the issue of dismissal of an employee) is not taken into account by the employer.

5.4. The consent of the trade union body with the grounds presented by the employer in the appeal to the trade union body and the order for reduction is drawn up in a protocol (act).

5.5. In case of disagreement of the trade union body with the proposed decision of the administration, consultations are held within three working days, which are drawn up in a protocol of disagreements.

5.6. If there is no general agreement on the results of consultations after 10 days from the date of sending the notification to the trade union body, the employer has the right to make a final decision, which can be appealed to the relevant state bodies (Article 373 of the Labor Code of the Russian Federation).

5.7. The employer has the right to terminate the employment contract no later than one month from the date of receipt of a reasoned opinion of the elected trade union body (Article 373 of the Labor Code of the Russian Federation).

5.8. The collective agreement may establish a different procedure for the mandatory participation of the trade union body in the consideration of issues related to the termination of the employment contract at the initiative of the employer (part 4 of article 82 of the Labor Code of the Russian Federation).

6. Notification of the state agency for employment

The Law "On Employment in the Russian Federation" as amended on April 20, 1996 No. 36-FZ (Article 25) obliges employers to inform the territorial authorities on employment issues in a timely manner, no later than 3 months in advance.

6.1. The employer is obliged in writing (information letter) to provide the employment authorities with information on:

possible mass layoffs of workers;
the number and categories of workers they may affect;
the timing of the implementation of the relevant activities.

6.2. The concept and criteria for mass layoffs should be defined in sectoral or territorial agreements (Article 73 of the Labor Code). To date, they are guided by the norms of the Decree of the Government of the Russian Federation of February 5, 1993 No. 99 "On the organization of work to promote employment in conditions of mass release", according to which the main criteria for mass release are:

indicators of the number of dismissed workers;
or reduction in the number for a certain calendar period.

6.3. The employer, in the event of a mass layoff of employees, prepares and submits to the employment authorities in writing (a list) information for each dismissed employee about:

professions;
specialty;
qualifications;
wages.

7. The fact of dismissal

7.1. Issuance of the Dismissal Order (after a preliminary appeal to the elected trade union bodies), which is signed by each dismissed employee.

7.2. Making an appropriate entry in work book- "Dismissed due to the reduction of the staff of clause 2. Article 81 of the Labor Code of the Russian Federation."

8. Payment of severance pay

The payment of severance pay in connection with the reduction in the number or staff of the organization's employees (part 2 of article 81 of the Labor Code of the Russian Federation) is regulated by article 178 of the Labor Code of the Russian Federation.

8.1. Upon termination of the employment contract due to a reduction in the number or staff, the dismissed employee is paid a severance pay in the amount of the average monthly salary, and he also retains the average monthly salary for the period of employment, but not more than 2 months from the date of dismissal (with offset of the severance pay).

In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal (by decision of the employment service authority - a certificate confirming the fact that the employee has not yet been employed). If the employee did not apply to the employment service within two weeks after the dismissal, then the provision of part 3. Article 178 of the Labor Code does not apply, since this requires the decision of the employment service authority.

8.2. Additional compensation in the amount of two months' average earnings (i.e., in addition to the severance pay established by labor legislation) is paid if the employer, with the written consent of the employee, terminates the employment contract with him without two months' notice of dismissal;

8.3. An employment contract and a collective agreement may provide for other cases of payment of severance pay, as well as establish increased amounts of severance pay.

8.4. The accrual and payment of severance pay is carried out after the dismissal of the employee on the basis of payment documents with the obligatory personal signature of the dismissed person.

8.5. If the dismissed employee is not for receiving the payments due to him, it is necessary to send him a written notification (a copy of the document must be kept by the employer) about the payments due to him. If possible, obtain written testimony of witnesses confirming the fact that, despite the notification from the administration, the dismissed person did not appear to receive the appropriate payments (such documents are necessary in case of litigation).

DOCUMENTATION OF THE REDUCTION PROCEDURE

The staff reduction procedure should contain documentary evidence of the procedures (measures) performed:

1. New staffing.

2. Order on the approval of the new staffing table.

3. Order to reduce staff.

4. Action plan to inform the personnel of the enterprise about the ongoing activities.

5. An extract (personal file) for each candidate for dismissal.

6. Protocol (decision) of the commission based on the analysis of the pre-emptive right to leave at work.

7. Signatures under the order to reduce staff, indicating the date of familiarization (2 months in advance).

8. Application of the employee with a personal signature (in case of dismissal of the employee in accordance with clause 3.1. of this instruction).

9. The act of offering the employee another job (position).

10. The act of refusal of the dismissed employee from the offer of another job (indicating the date and signature of the dismissed employee) - in case of disagreement.

11. An act of agreement with the proposed work (indicating the date and signature of the dismissed employee) - in case of consent.

12. Notification letter to the trade union body on the implementation of measures to reduce staff, + copies of documents that are the basis for the decision (staffing, order to reduce, etc.).

13. An act of agreement or disagreement of the trade union body with the grounds presented by the administration.

14. Protocol of disagreements (in case of additional consultations with the trade union).

15. Act on the absence of a motivated opinion on the part of the trade union (in the case of clause 5.3. of this Instruction).

16. Notification letter to state employment agencies (3 months in advance).

17. Information for each employee provided to the employment service in accordance with clause 6.3 of this Instruction.

18. Order of dismissal (with the date and signature of each dismissed employee).

1 -1

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

What the law says

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

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

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

Making changes to the staffing table

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

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

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

Categories of persons who cannot be reduced

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

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

The following employees enjoy the advantage of staying at work:

Parents of children with disabilities;
single mothers;
single fathers;
Being the only breadwinner in the family;
Injured or prof. diseases at this particular workplace;
Persons who received a disability in wars;
Heroes of Russia and the Soviet Union;
Victims of the Chernobyl disaster;
Victims of trials in Semipalatinsk;
Undergoing training for which they were assigned by the organization;
Employees who patented inventions (USSR legislation applies here);
Heads of trade union organizations;
Representatives of the team elected by voting who take part in resolving conflict situations with management.

So, it is unacceptable to dismiss by reduction:

Persons, ;
The employee who has the sick leave;
Women who have children under 3 years of age.

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

Reasons for layoffs

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

Typically, serious circumstances include:

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

Conditions for dismissal

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

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

Order and procedure of reduction

Dismissal by reduction is carried out in the following order:

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

Worker's rights in case of downsizing

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

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

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

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

How are redundancy payments made?

Table 1. Payment procedure

What to do if payments are not made in full

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

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

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

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

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

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

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

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

table 2.Comparative analysis of types of dismissal

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

Employer Mistakes

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

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

Conclusion

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

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

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 an entire 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 reduction 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, the staffing table states 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 is left 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.

The offer to the employee of vacant positions must also be documented, for which a 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.

Please note that the article indicated that the necessary documents and notifications must be issued 2 months before the proposed dismissal 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.

What to do with the reduction of the employer, it is written in detail in Art. 81-82 of the Labor Code of the Russian Federation. You must notify employees of the upcoming reduction no later than 2 months before the date of dismissal. In some cases, the notice period may be up to 3 months. Moreover, it is necessary to notify employees in writing and against signature. In addition, it is necessary to submit information about the upcoming reduction to the employment service and the representative body of workers (trade union), if it is created and works at your enterprise

In the event that the basis for the reduction of staff is the abolition of posts or vacancies, draw up and approve a new staffing table. These measures will allow you to legally competently draw up a reduction and insure yourself in case employees try to challenge it in court.

As for the employee, you can challenge the decision of the employer in case of violation of the above points of the regulation or in case of non-payment of the due maintenance for two months. If you do not find a job during this period, your former company will be obliged to pay you a salary for the third month of forced idleness.

You are required to accrue and issue cash payments and due compensation on the last day of work. In the event that you no longer worked on that day, the money, according to Art. 140 of the Labor Code of the Russian Federation, you are required to pay in full the next day after applying for them. The total amount includes: salary for the last month of work, compensation for unused basic and additional leave, severance pay in the amount of average monthly earnings. Average earnings are retained by you for a period of no more than two months from the date of dismissal for the period while you are in search of work.

On the last working day at this enterprise, you should also receive a work book in your hands, in which an entry will be made about the dismissal, and all your other documents related to work. After receiving the calculation, apply for further compensation payments only to the territorial employment service.

In this case, the dismissal of an employee occurs at the initiative of the employer and arises as a result of a reduction in staff positions or positions in the enterprise and is regulated by Article 81 of the Labor Code. Consider a step-by-step procedure, compensation due to an employee and some of the nuances that may arise. We will also determine which categories of citizens fall under such a wording, and which do not.

General concepts

Reduction is a fairly legal tool that an employer resorts to in order to “optimize” the staff. But in turn, this can cause a number of problems for the employer and an additional financial burden, so they often resort to a trick - “you have been laid off, write a statement on your own - this wording is better.” It all depends, among other things, on the initiator of the process.

Of course, all actions during such a dismissal must be observed in accordance with the law and deviations from it can bring problems to the organization. Therefore, it is in the interests of the employer to do everything right so that the employee does not go to court.

Preferential right of the employee not to be laid off

It is worth noting an important point that certain categories have an advantage when compiling a list of employees:

When an employee is on vacation
With temporary disability
It is forbidden to dismiss the following employees - pregnant women and women who have a young child under the age of 3 years
A single mother who is raising a child under 18 who is disabled or a minor under the age of 14
Leave an employee with higher labor and qualification indicators
If the choice fell on employees who are in equal positions, then priority is given to family employees who have 2 or more dependents; in whose family there are no other persons with independent earnings; who received an occupational disease or work injury from the employer; participants in hostilities or the Second World War; workers who improved their qualifications on the job.

Attention! If these requirements are not met, the employee may apply to labor inspection. After compiling the list, the employer must take the following actions, which we will write down in steps.

Dismissal to reduce staff step by step instructions

Step 1. Issuing an order to carry out the reduction

For the legality of actions, it is necessary to issue an order. For understanding, we note that the order to dismiss and the order to reduce staff are different documents. The very form of the order to carry out measures to reduce the staff does not have an approved form, however, its preparation requires a responsible approach. It must reflect the date of reduction and reflect the changes made to the staffing table. A new approved staffing table will also be required.

Step 2. Notifying employees, offering other vacancies

According to the rules of the Labor Code, the employer is obliged to notify the employee 2 months before the onset of a reduction in staff, headcount, or in the event of liquidation (bankruptcy) of the company. Based on the decision made, a new staffing table and an order are issued, which are brought against signature to each employee who has been made redundant.

In the event of reorganization or reduction, but not liquidation, the employer's obligation is to offer employees who have fallen under the reduction all vacant positions corresponding to their experience and qualifications (clause 3 of article 81 of the Labor Code). But in practice, the organization simply “forgets” about it, and employees simply do not know about it.

Important! The employer must, as soon as a vacancy appears at the enterprise, offer them to the reduced persons up to the appointed day of dismissal.

Upon receipt of a notification with the proposed vacancies, the employee has the right to agree to such a place or not. In the first case, the employee is transferred, and in the second, the employee is fired.

Important! If the employer did not offer employees other vacancies, then such a reduction may be recognized as illegal.

Step 3. Notification of the trade union organization and the employment service authorities

If there is a trade union organization, it must also be notified of the ongoing reduction. The issue of timing was controversial for some time, but by definition No. 201-O-P, which was issued on January 15, 2008, the deadlines were set - to notify 2 months before the date of dismissals, in case of mass actions - 3 months.

The opinion of the trade union organization must be sent to the employer within 7 days, otherwise it will not be taken into account. If the trade union does not agree on the fact of dismissal, consultations must be held within 3 days, and they should be recorded. If consent to these actions and agreements were not reached within 10 working days, the employer has the right to make a final decision on the reduction.

By the same principle, it is necessary to notify the employment service. Notifications approved by government decree No. 1469 of December 24, 2014 - with a reduction in the enterprise for 2 months (download the notification form. According to Appendix No. 1) or for mass layoffs, then 3 months (download the form. According to Appendix No. 2).

Step 4. Dismissal order

For the final initiation of dismissal, it is necessary to issue an order in the form T-8. At the same time, in the column "reason" it is necessary to indicate the reason for dismissal - to reduce staff. After that, the order must be signed by the director and also, after familiarization, signed by the employee.

Step 5. Entry in the work book

Next, you should make the appropriate wording in the work book, in which the reason is displayed - reduction, referring to the article of the Labor Code. For example, " Labor contract terminated in connection with the reduction of the staff of the organization, paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

Step 6. Entry in the work book registration book and employee card

Simultaneously with the issuance of a work book to an employee, you should receive a signature from him in the journal for issuing work books. And then you need to enter the data in the employee's personal card - the date of dismissal and the reason.

Step 7. Layoff for redundancy payment of benefits

Let's look at what benefits and payments are due to the employee. It is the fulfillment of obligations under this paragraph that pushes the employer to negotiate with the employee, and sometimes intimidate him, to write a statement of his own free will. Payments are regulated by Art. 178 TK.

Upon dismissal due to redundancy, the employee is entitled to a severance pay, which amounts to the amount of one average monthly salary, and the average monthly salary is retained for the period of his employment, not exceeding 2 months. Upon dismissal, the employee is issued a certificate of his average monthly earnings (including the amount of severance pay). If within 2 months the employee did not find a job, then the organization is obliged to pay the employee for another 2 months.

To receive these compensations, the employee must register with the employment service. In exceptional cases, by decision of the service, the employee may be paid for the third month. For payment, the employee must provide the employer with his work book, in which there are no employment records, including an application. Payments are made after 2 months from the date of dismissal.

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In addition, the employee is entitled to standard payments - compensation for unused vacation (if any) and with it the calculation for the days worked.

There is also an early dismissal of an employee, if he signs a written consent. In this case, he is paid ahead of schedule all due payments, including for the period before the end of the term of work.

After signing the documents, it is necessary to pay the employee on the last day of his work.

Appealing actions by an employee in court

In case of misconduct, the employee has the right to sue and appeal the decision. To do this, within a month from the date of receipt of a copy of the dismissal order (or receipt of labor, or from the date of refusal to receive an order or labor under Article 392, part 1 of the Labor Code), it is necessary to file an application with the district court to recognize such dismissal as illegal, as well as to recover from the employer during his absence the amount of average earnings.

By decision of the court, the employee may be reinstated at his previous place of work and may also recover in his favor the amount of compensation for the time of absenteeism. In particular, they can change the wording according to which the employee was dismissed to dismissal of his own free will (parts 3, 4 of article 394 of the Labor Code), as well as award moral compensation.

You may also be interested

Article on the responsibility of employers in case of delay in payment of wages.
Dismissal by agreement of the parties, the pros and cons.
Dismissal for absenteeism step-by-step instruction.
Dismissal at will.

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The rights of an employee in case of reduction

AT recent times downsizing has become a fairly common procedure. This is due to the desire of the employer to make the work of the enterprise more efficient. However, in this case, ordinary workers may suffer. Being poorly versed in the legislation, not all of them know the rights of an employee in case of reduction. Many are afraid that, taking advantage of this, the administration may violate the guarantees provided to the laid-off employee and not make all the necessary payments.

Everyone needs to know the rights of an employee during reduction

Employers, in turn, strive to fully respect the rights of the dismissed person due to redundancy, to fulfill all the formalities of dismissal of this type, so that subsequently the dismissal could not be recognized as illegal. After all, this may entail additional financial losses for the employer, such as payment for forced absenteeism.

Main steps

High-quality preparation for the reduction is also necessary to retain the employees necessary for the smooth and efficient operation of the organization. Mistakes, insufficiently thorough planning and implementation of the reduction can lead to both serious financial losses and significant administrative and legal consequences.

What actions should the company take before the announcement of the planned staff reduction? It depends on the internal situation in the enterprise:

reasons why this decision was made (decrease in production volumes, liquidation or bankruptcy of the company, cost reduction, and so on)>
what is the general financial situation in the company (is it possible to pay compensation, pay for retraining, employ the laid-off employees)>
Is there a trade union in the company?

The role of the trade union committee

If there is a trade union at the enterprise, it, as a rule, seeks to protect the rights of workers to the fullest extent. Elected trade union bodies have certain rights:

monitor compliance with the order of ongoing measures to reduce staff>
to make proposals for changing the approach to layoffs, optimizing the ongoing layoff process, and so on.

What does the Labor Code say?

An employer has the right to dismiss a redundant employee only when:

there is no possibility of its translation,
with his consent
to another position (possibly with retraining).

The employer can offer the employee not only positions corresponding to his specialty and qualifications, but also other work that the employee can perform, taking into account the existing education, health status and practical skills. With the consent of the employee, the employer draws up his transfer to another position. If the employee refuses the provided work in another position or if the administration does not have the opportunity to provide another job, then there is a dismissal due to a reduction in staff according to the Labor Code.

Employees not subject to dismissal

However, not every employee can be fired due to staff reduction. The workers themselves and the trade union organization must carefully monitor that there is no violation of the rights of the worker during the reduction. Some employees cannot be fired for the following reasons:

women with children under three years of age>
pregnant women>
single mothers with children under 14 years old (if the child is disabled, then up to 18 children)>
a man who is on parental leave instead of his mother>
a man raising children without a mother (in the event of her death, deprivation of parental rights, prolonged stay in a medical institution for more than 1 month, other reasons)>
an employee who is the guardian of children of this age.

In addition, an employee who is on sick leave (in case of temporary disability) is not subject to dismissal.

Who is left at work?

There is a fairly extensive list of categories of employees who have the preferential right to stay at work with a reduction in staff:

workers with higher qualifications, labor productivity>
family persons who have at least two dependents>
employees whose families do not have other self-employed workers>
disabled>
combat veterans.

Dismissal Notice

The employer must respect the rights of the redundant employee

The employer is obliged to warn the employee in writing about his dismissal due to staff reduction at least 2 months before the scheduled date of dismissal. Before the expiration of this period, the administration cannot dismiss the employee without his consent, otherwise there will be a violation of the employee's rights during the downsizing.

To restore their rights, an employee can go to court, which is able to change the date of dismissal. In addition, the employer will be forced to pay the employee the average earnings for the entire period of forced absenteeism (starting from the moment of dismissal and ending with the expiration date of the warning period).

In addition, the employee is entitled to a reduced working week at the warning of layoffs. After receiving notice of the reduction of his position, the employee has the right to leave for 4 hours a week during the next two months remaining before the date set for dismissal workplace to search for a job.

Compensation instead of notice

In return for a notice of dismissal upon reduction, the employee has the right to receive monetary compensation from the employer, which will be equal to two months of average earnings. The administration can offer such compensation during all two months for which the notification is issued. However, the amount of compensation will be calculated in proportion to the time remaining until the end of the notice period. In this case, the administration dismisses the employee without waiting for the end of the warning period, at the same time in the work book in the column "grounds for dismissal" there will be an entry "dismissed due to staff reduction".

The payment of compensation does not relieve the employer of the obligation to pay the employee severance pay. The right to accept or not accept this offer remains with the employee.

Compensation and benefits in connection with the reduction

On the last working day, a full settlement must be made with the employee and all allowances and compensations due to him must be paid. If this day was not a working day for the employee, then all cash must be paid after the employee's request:

monthly salary >
severance pay (equal to average monthly earnings, paid for two months)>
if the employee has not used his vacation before the date of dismissal, he receives compensation for vacation days.

The right to redundancy leave implies the receipt of the next or additional leave. But in this case, he is deprived of the right to compensation, and the dismissal procedure will be continued after his release from vacation.

In addition, other payments or increases in the size of severance pay are possible, which are provided for by an employment or collective agreement.

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If the reduction falls on vacation

The rights of an employee in case of redundancy can be found in the Labor Code of the Russian Federation

According to the labor code, during vacation, the employee is exempted from performing official duties, therefore, and from the obligation to comply with any orders of the employer. An employee has the right to rest during vacation. He shouldn't be looking for work. To do this, a period of validity of the notice period is provided, which is a measure aimed at minimizing the consequences of the loss of work.

Since the loss of work caused by dismissal to reduce the number / staff does not occur due to the fault of the employee, it is fair to recognize for the employee the right to demand not to include vacation time in the period of notice of dismissal. Otherwise, there is a violation of the employee's right to rest.

There is no direct prohibition on notifying an employee about the dismissal procedure during the vacation period in the law. Therefore, the employer may try to take advantage of this, thereby damaging the interests of the employee.

Since the situation with vacancies may change significantly during the notice period, an employee who has been made redundant during a vacation may be able to apply for new positions that have appeared. In addition, while an employee is on vacation, the company is forced to limit itself in hiring other employees, since the relevant positions must first be offered to the dismissed employee, and there are not enough grounds for recalling him from vacation.

Downsizing at work: employee rights

September 5, 2016

The dismissal of employees to reduce staff is a long and very responsible process for any employer. Because it involves notifying the persons to be reduced two months before the date of its implementation, as well as paying them all the money due, which must be issued on the last day of employment. In addition, the employer must offer this category of subordinates available vacancies, and also prevent the hiring of new people.

Preparing to cut

Before carrying out layoffs to reduce staff, 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 more than the positions laid down in it;

- notify subordinates about this 2 months in advance;

- offer workers other vacancies that are available in the organization;

- notify the employment authorities within the period specified by law.

If a citizen already knows in advance that there is a reduction at work and that he falls under it, then you can immediately discuss this issue with the manager. After all, you can get all the necessary payments before two months and find a new one faster. vacancy, unless, of course, it is impossible to stay the same.

Making redundancies is expensive

In fact, the dismissal of employees due to downsizing is not only a long time, but also not a very cheap procedure. At the same time, 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 the reduction, registers with the employment center no later than ten days from the date of his dismissal and is not employed by him, then in this case he will receive cash benefits from the former leader for the third month. That is why many employers try to bring their subordinates under dismissal of their own free will. Then you don't have to pay them that much money.

In the event that there is a reduction in work, but the boss nevertheless forced the objectionable employee to leave of his own free will, such a dismissal can be appealed through the court. Only for this will need witness testimony and documentary evidence of this fact. Otherwise, it will be simply impossible for a subordinate to recover at work and receive all the money due.

Notification

The manager warns the employee about the upcoming reduction 2 months in advance. The notification shall be made in writing and handed over to the person against signature. Otherwise, the employee will not be considered aware of the upcoming dismissal, which can subsequently cause great trouble for his boss, up to and including litigation.

In a situation where there is a reduction in work, the rights of the employee should not be infringed upon by his boss. The latter is obliged to offer the former all available vacancies that can be specified in the notice itself.

The cut notice looks like this:

00.00.00 _______________

Dear __________________ (full name of employee)!

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

We offer you a choice of available vacancies ______________ (name of vacancies). In the event that you agree to work in another position, please inform the Human Resources Department of the organization (name) Human Resources Specialist in writing before the expiration of two months from the date of receipt of the notification.

Sincerely, Director of LLC ________________ (signature transcript).

From the moment when 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.

When a person is dismissed on the basis of paragraph 2 of part 1 of Article 81 of the Labor Code of the Russian Federation, the manager must fully pay him and pay:

— Wages for the entire time of work.

— Compensation for vacation, if it was not used. If the employee was already on vacation, but the period was not fully worked out, then with a reduction in deductions from his salary, no deductions are made for this.

- Severance pay in the amount of two months' earnings. In the event that an employee, after dismissal, applied to the employment authorities, but was not employed, he retains this earnings for the 3rd month. At the same time, 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 settlement with the employee must be made on the last day of his labor activity, otherwise it will be a violation of Article 140 of the Labor Code.

The right to keep a job

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

In the event that all employees are of equal productivity and high qualification, preference should be given to an employee who:

- has two or more dependents for whom the salary of this person is the main source of livelihood;

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

- received a disease in the course of work or other serious injury in this organization;

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

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

Paperwork

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

When preparing an order, the personnel specialist of the organization must indicate in it the exact wording of the grounds for dismissal, indicating the paragraph, part and article of the Labor Code. After that, fill out a work book, put your signature in it and certify all this with the seal of the organization. The entry in the labor should be as follows: "Dismissed due to redundancy on the basis of clause 2 of part 1 of article 81 of the Labor Code of the Russian Federation." Other wording is not used, because a citizen is fired from a job due to redundancy, and not for other reasons.

All documents related to the implementation of a person's labor activity, as well as all the funds due to him, must be issued to the employee on the day of dismissal.

Invalid moments

At a time when there is a reduction in work, it is unacceptable to accept new people for existing vacancies. This will be a serious violation on the part of the manager, since he must offer these vacant positions only to persons who are threatened with dismissal on this basis. The level of education of employees in this case does not matter.

It is unacceptable, in the final financial settlement, to deduct from the salary of an employee for annual leave that has already been granted, if at the same time 12 months have not been fully worked out.

In a situation where there is a layoff at work, the rights of the employee in no case can be somehow infringed on the part of the management. This primarily applies to timely payments, otherwise the dismissed person may apply for protection to the judicial authorities.