In case of reduction, the employer is obliged. Dismissal of an employee of retirement age

Sometimes the reason for the dismissal of one or more employees of the enterprise is not the decision of the employer or the employee himself, but an objective necessity. The situation may be related to the transition to a new (automated) level of production or the fact that the organization no longer needs the same number of employees. In such cases, there is a reduction in the number or staff of employees.

For the employer, this becomes a legal tool to optimize the composition of the staff and the staffing structure. However, the use of such an approach is associated with large quantity nuances and requires compliance with many rules.

Basic concepts and terms

In order to understand the intricacies of the topic and understand who, how and under what circumstances can be fired if there is a reduction in staff, you should decide on the main concepts:

1. The number of employees is the number of all employees of the enterprise, in other words, it is the payroll. If we are talking about dismissing several representatives of the same profession performing similar functions, while maintaining a position in staffing is a reduction in the number of employees. An example is the dismissal of three architects out of five.
2. The staff is absolutely all the positions represented in the company (management, administrative, workers, and others). Their list is a staffing table, in accordance with which the structure of the organization's personnel is formed.
3. Reducing the number of staff may be necessary in order to exclude from the list of posts that duplicate each other, or those that can be combined into one staff unit. Also, this concept includes measures aimed at eliminating any unit.

This means that the reduction in staff is accompanied not only by a decrease in the number of employees with the same responsibilities, but also by the dismissal of all employees performing specific labor functions. Returning to the example above, all five architects will be fired when the staff is reduced. Perhaps it is more profitable for the enterprise not to keep these employees on the staff, but to hire them from time to time to perform a separate task (outsourcing).

Layoff legislation due to downsizing

The legal aspects accompanying the rupture of labor relations due to changes in the staffing structure are regulated by the Labor Code of the Russian Federation. The reduction of the staff (due to the liquidation of the organization or the change of its owner) is considered in article 81. Other common situations related to the termination of contracts with employees at the initiative of the employer are also listed here.

Among other cases, this article provides for the procedure for dismissal of employees:

Who can be made redundant

The decision on which the reduction in the number or staff of employees depends is made by the employer, but at the same time he must take into account the rights of employees who enjoy certain benefits.

When considering candidates for employees to be dismissed, the head is obliged to comply with the rule set forth in Art. 179 TK. It states that staff reductions should occur at the expense of the least qualified personnel, who have the lowest labor productivity rates. The practical implementation of this rule is often associated with an assessment of the experience and seniority of employees. It is assumed that those of them who have worked at the enterprise recently are of the least value for the team.

To assess the importance of an employee great importance also has the result of the qualifying exam, his education and the level of performance for the previous period. This means that when comparing two employees holding the same position, preference will be given to the one who has a higher education. His colleagues, who have received secondary special education, are likely to be laid off.

Categories of personnel that are not affected by dismissal due to staff reduction

The reduction in the number of employees does not affect the following categories:

• Parents of children with a disability status.
• Mothers and fathers raising children on their own (singles).
• Parents large families until such time as younger child will not be 14 years old.
• Citizens who are the sole breadwinners of their families.
• Workers who have been injured or ill as a result of their employment with the company.
• Disabled people who suffered as a result of wars, the Chernobyl disaster or the Semipalatinsk tests.
• Employees of the company with awards (Hero of the USSR, holder of the Order of Glory) or the title of inventor.
• Employees who combine the performance of their labor functions with training.

The redundancy does not affect those employees who are members of a trade union or act as elected representatives of the work team and take part in negotiations with the company's management.

Also, employees of the enterprise who are on sick leave, on regular or maternity leave cannot be dismissed. True, this can be done with their written consent or with complete elimination companies.

How to reduce pensioners and part-time workers

The Labor Code of the Russian Federation (Article 3) contains a ban on the manifestation of age discrimination by an employer. Most often this applies to employees who have reached retirement age and continue to fulfill their official duties. If necessary, they will also be affected by downsizing, but using them social status as grounds for dismissal is illegal.

Taking into account the experience and qualifications of pensioners, on the contrary, they fall under the definition of employees with preferential rights. Based on the fact that they can be one of the most useful employees of the enterprise, they are the last to be laid off.

When planning the dismissal of an employee who combines two positions, the employer produces almost all standard actions. The only difference is that the legislation does not establish whether he should accrue payments to such an employee.

In fact, redundancy benefits are necessary for those who lose their source of income. However, while remaining in the company, the part-time worker continues to receive wages. Here, the decision on payments and their size remains with the employer.

Why do employers resort to layoffs?

The state allows the heads of enterprises to independently decide on the need to reduce staff or the number of personnel. However, in case of disputes, the economic feasibility of these measures can be checked by the judicial authorities.

This condition imposes on the employer the obligation to inform his subordinates about why the reduction in the staff is being carried out. This information is set out in the relevant order and may be associated with the following factors:

• With a low level of profitability. The lack of profit does not allow the management to pay at the proper level for the work of the previous number of employees. By reducing labor costs, the organization can save some money to pay off debts or purchase a new batch of materials.
• Inefficient state structure. If among the positions of the organization there are those that duplicate each other or are not of value for maintaining economic activity, their elimination would be justified.
• Introduction of new technologies or equipment. When production becomes more automated and does not require the participation of the previous number of employees, staff reduction can significantly reduce costs and increase profitability.

What rules should an employer follow when laying off staff?

The forced layoff procedure can significantly affect the well-being of those employees who are subject to redundancy. It is not always possible for them to find workplace under the same conditions as in this enterprise. For this reason, the state dictates to managers certain conditions, the observance of which to a certain extent protects the interests of laid-off workers:

In the event that the company's management "forgets" to inform the employment service of their intentions, in addition to fines, the court may oblige them to pay wages to employees for forced absenteeism.

How the downsizing happens: step by step instructions

Any head of a company or organization, when planning and carrying out measures to reduce staff, must know and comply with all legislative norms and requirements. Ignoring or unintentionally breaking one or more rules can lead to quite serious consequences: a fine or a trial.

Based on this, the employer is interested in implementing a phased reduction in staff (the Labor Code of the Russian Federation establishes a list of necessary documents and procedures):

In the event that the employee does not agree to the transfer and continuation of cooperation with the company, the last in the list of required documents is the order to dismiss him. The unified form T-8 is recognized as common for this document.

How a redundancy termination ends: vacation pay, severance pay

The dismissal of an employee who was informed in time and refused the offered vacancies takes place simultaneously with the payment of all necessary funds to him.

Together with the work book, the former employee is given:

• Salary accrued for the last worked period.
• compensation payments for unused vacation(if any).
• Special payments for downsizing (severance pay). Their size is often equal to the average wage, but may be higher if this is specified in the collective agreement.

The company continues to pay redundancy benefits to the employee for another two months if he is registered at the labor exchange, but cannot find a job. Its size is set at the level of the average salary, but it does not take into account the amount that has already been issued.

In the event that an employee wishes to quit earlier than the deadline set by the employer, he must be paid the money accrued for the unfinished time. That is, in fact, in any case, he will be paid a two-month period between the announcement of the reduction and the date on which this procedure is scheduled.

Payments to certain categories of personnel

The procedure for reducing some workers is slightly different from the one outlined above. This is due to the non-standard nature of their work functions or special circumstances:

1. For those employees whose duties are considered seasonal, redundancy payments are an amount equal to average salary For two weeks.
2. Employees of organizations located in the Far North are given a one-time severance pay and an average salary for three months (if they are not employed earlier).

What will be indicated in the work book

According to Art. 81 of the Labor Code, the reduction in staff is indicated as the basis for terminating the employment contract in the employee's work book. It is issued on the day of dismissal along with the accrued amount of money. When they are received, the former employee of the enterprise signs several documents (personal card, book of accounting for the movement of work books, insert).

Certification of the record that labor contract torn, the signature of the employee of the personnel department (who maintains work books) and the dismissed employee becomes, as well as the seal of the head.

What should be the behavior of the employee during the reduction

When a person receives notice that they are going to be laid off, they should take the following actions:

1. Make inquiries about the list of persons who are not entitled to be fired and find out if he falls into this category. In the event that they discover any factor that gives them the right to privileges or benefits, this should be stated in a letter and transferred to the head. The best option is to write a letter in two copies. One of them is given to the management with a request to mark the receipt on the second. This will be useful evidence in favor of the employee if the case goes to court.
2. Submit claims regarding alternative location work in this company. The employee does not have to agree to the offer, but the employer's written refusal to provide vacancies can also be the basis for canceling the decision to reduce.
3. To receive additional payments, you must register with the employment service within a period of no more than two weeks after the reduction in staff was carried out. The Labor Code of the Russian Federation specifies this period. Then the worker is entitled to a two-month allowance (average wage) if he fails to find a new job.

The most important aspect is that an employee should not write a letter of resignation himself after he becomes aware of the upcoming reduction.

Also, do not succumb to the persuasion of the boss and compromise, because dismissal by agreement of the parties does not provide for the payment of severance pay.

Professions at risk

Given the difficult economic situation, cuts can affect a fairly wide range of companies and organizations. Doctors and teachers may not be afraid for their jobs, but many firms will still undergo reorganization.

Among employees of budgetary enterprises, funding for the following professions may be limited:

• Employees involved in the telecommunications industry.
• Librarians.
• Postal employees.
• Mosgostrans employees.
• Reduction of staff of the Ministry of Internal Affairs.

In addition, some employees of state and commercial banks will have to look for new jobs.

Experts say that against the backdrop of such a disappointing situation and in the absence of wage increases, many highly qualified personnel will leave on their own initiative. Without waiting for the reduction, they will master new actual professions or seek application for their talents in other countries.

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

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

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

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

In which case is the reduction illegal?

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

Who is not entitled to be cut?

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

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

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

When an employer fires future mother or a single mother, not knowing about these facts, the dismissal is declared illegal through the court.

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

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

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

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

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

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

How is the reduction of an employee carried out?

The entire downsizing procedure is divided into several stages:

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

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

Creation of a commission of competent specialists

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

Notification

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

Jobs

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

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

Employment center

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

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

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

union

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

Dismissal

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

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

severance pay

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

Samples and forms of notifications or warnings

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

Sample notice:

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

NOTIFICATION.

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

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

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

General Director M.A. Klyuev.

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

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

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

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

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

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

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

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

How many months or salaries are redundancy benefits paid?

Preservation of the average monthly salary for the employee until the moment of employment
limited to a period of 2 months (under special conditions - up to 3-6 months).

Payment procedure:

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

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

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

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

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

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

1. Reimbursement for legal fees.
2. Late payment interest.
3. Compensation for lost earnings due to a delay in the work book, due to an incorrect entry into it of the reason for dismissal, due to illegal dismissal / transfer.

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

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

On a note:

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

What to ask the employer for layoffs - useful tips

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

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

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

Recently, 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 for taking this decision(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 hospital 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 with no other self-employed employees in their families)
• disabled people)
• 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 average earnings for the entire time 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 work week in case of a redundancy notice. After receiving notice of the reduction of his position, the employee within the next two months remaining before the date set for dismissal has the right to leave the workplace for 4 hours a week to look for work.

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 the average monthly salary, 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.

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 the vacation, the employee is released from the performance of official duties, and therefore 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.

The market economy and freedom of enterprise made the owners and management of companies responsible for all the risks that may lie in wait for commercial enterprise in his activities. The impact of fluctuating demand, internal financial and organizational problems, the general state of the economy can bring the company to the point of having to reorganize the team, lay off staff, and even decide to liquidate the native company. How this issue is regulated in 2019, we will tell in this material.

One of the most difficult decisions is to optimize the staff and the number of employees, or reduce. The management may limit itself to reducing the number of specialists in a certain direction, and possibly liquidate entire structural divisions or branches. If all specialists are fired and the position in the staff list is abolished, then we are talking about a reduction in staff. If the number of employees of one position is reduced, then a reduction in the number is implied. The complete liquidation of an enterprise implies a reduction in both staff and numbers.

Reduction in the number of workers - a decrease in the total list number of employees at the enterprise or within the same position. Reducing the staff - cutting the list of positions in the staffing table and dismissal of all specialists in this area.

Dismissal to reduce staff - step by step instructions

This instruction will help you understand exactly how the dismissal process occurs when the staff is reduced at the enterprise.

Decision on restructuring or liquidation

The meeting of founders or shareholders discusses the need to change the direction of activity or carry out activities to optimize costs, including for salaries. The presence of a protocol with a collective decision and its rationale will help to further prove that there was a real need for staff reduction and it was carried out for real reasons.

Development and approval of the updated staffing table

Changed organizational circumstances are forcing management to reconsider the required number of specialists. If it was decided to change the type of activity, then in the list of positions, it is quite possible that completely new ones will appear and irrelevant ones will disappear without a trace. For example, a fabric manufacturer decided to stop producing own products, and instead launch a trade in purchased fittings. Then the position of "Weaver" will disappear from the staff, but the vacancy of "Seller" will appear.

When liquidating an enterprise, this stage is not necessary, because in the end there will be a reduction in both the number and staff. The same applies to the closure of a separate branch of the company.

Comparison of the number of specialists of the old and new editions of the staffing table

It will allow you to determine the number of people to be laid off, and also help to prove that the reduction was valid.

Making a decision to reduce the number or staff

A separately drawn up order on the inevitable need to reduce employees without indicating the names and dates of the proposed dismissal will leave management room for maneuver in case of illness and vacations of the reduced employees. It is better to approve a specified list of specialists collectively and formalize their dismissal by orders in the T8 form. Of course, a small enterprise may limit itself to the sole decision of the head, but if the team is larger than the average, then it will be more useful to create a commission and hold a vote.

Determination of the circle of employees to be reduced, as well as those who have the primary right to remain (Article 179 of the Labor Code of the Russian Federation). At the same stage, it is better to coordinate the list of candidates with the trade union cell or organization.

Notification of employment authorities

Notify of the proposed release with details on positions, working conditions, salary. The form of notice and procedure are set out in Law 1032-1 and Ordinance No. 99. It must be remembered that it is better to carry out all previous procedures in advance, because it is necessary to submit Information on the dismissed employees at least 60 days before the actual dismissal. If an enterprise with more than a dozen employees is liquidated or more than 50 workers are threatened with a reduction in 30 days, two hundred in 60 days and five hundred in 90 days, then this will be considered a mass layoff. Then the Information is sent to the employment authorities three months in advance (Appendix 1, Decree No. 99). In the event of liquidation of an individual entrepreneur, the law allows you to submit information within 14 days.

Employee warning

Warning of persons from the approved list about the upcoming dismissal on the basis of paragraph 1 or paragraph 2 of Art. 81 of the Labor Code of the Russian Federation (reduction).

The notice of reduction must be handed in personally and under a handwritten signature. Here, too, you must not be late and inform the employee of the bad news no later than 60 calendar days. Reduced at this moment, it may well be on the next vacation or on the ballot. Because according to Art. 125 of the Labor Code of the Russian Federation, a vacation can be interrupted only with the consent of the employee, it is unlikely that it will be possible to do it personally.

You can try to send the document by mail or telegraph. Then the date of the warning will be the date of actual receipt of the letter. There is a risk that subsequently the addressee will refuse to sign a letter or telegram, or will declare that no one has transmitted anything to him. You can send a commission from the enterprise to the employee and try to transfer the document to him in home environment. The main thing is that this does not acquire a scandalous connotation, and the employee does not regard this as a violation of his right to personal life and rest. Therefore, it is better to postpone the delivery, and wait for him to return to work, do everything during working hours.

If a person refuses to receive a timely notice in his hands, then this fact must be activated in the presence of two disinterested witnesses.

Offer of new vacancies

If the reduction is planned to be partial, then the company may have vacancies in other departments and divisions. They must be offered to those who have been warned about the reduction, Art. 180 of the Labor Code of the Russian Federation. The primary condition for this is that the qualifications and state of health of the transferred employee must be sufficient and satisfactory for the performance of the proposed duties. For example, if an accountant is laid off in a hospital, then you can offer her a vacancy for a secretary or typist, but it is not legal to offer a doctor or nurse position, even if they are vacant. Although, it is possible that a person has an education that he did not consider it necessary to report to the personnel department, and a completely unexpected option for the employer will suit him.

The Labor Code does not prohibit offering less paid work or a lower position. Usually, the employee is presented with a list of all unoccupied positions in the company, even those located at a remote distance (of course, if this line is included in the collective or labor agreement).

Transfer of employees to new vacancies

An agreement with the employee will serve as a reason for issuing an order for transfer to a new position offered to him. If it is already in the staff list, the order and the contract can be signed even before the expiration of the warning period.

The worker can change his mind and withdraw his consent at any second before the date of the actual transfer. However, if to new job he nevertheless proceeded, then you can quit it only under Art. 80 of the Labor Code of the Russian Federation, then it is no longer worth hoping for a severance pay upon dismissal due to staff reduction.

Issuance of a dismissal order in order of reduction of the rest

For those who decide not to continue working in the company in a new capacity, it remains only to prepare an order for dismissal due to reduction.

Calculation, payment of benefits and compensations

Labor legislation guarantees employees the following payments:

1. Article 178 of the Labor Code of the Russian Federation provides for a severance pay upon dismissal due to redundancy in the amount of the average salary for one month. When calculating it, you must be guided by Decree No. 922.
2. prescribes to calculate and pay to the reduced employee compensation for the accumulated, but unused, days of earned annual leave (minimum recorded 28 days + possible additional days).
3. Part 3 of Art. 180 of the Labor Code of the Russian Federation, early separation from an employee who has been previously warned about the reduction is allowed. The remaining working days before the initial date of dismissal must be paid based on the average earnings calculated in accordance with Decree No. 922.
4. Be sure to pay the wages earned in the current working month upon dismissal. Calculation is carried out on the basis of salary or tariff rate additional payments and bonuses established in the company in proportion to the hours worked (Article 135 of the Labor Code of the Russian Federation).
5. According to parts 1 and 2 of Art. 178 of the Labor Code of the Russian Federation, the released employee retains earnings "at the average" for the search period suitable place, but only if he does it in an active way. The proof of this will be its registration at the labor exchange in the next half a month after the dismissal. Then he will be able to reasonably count on material support from the former employer during the first two months, and at the request of the employment service, and three. Such assistance is expressed in the payment of an average salary for a specified period.
6. Other payments and benefits provided for in the company's local documents (for example, a collective agreement).

Before issuing money into the hands of an employee, it is necessary to familiarize in writing with the composition of the accrued and withheld amounts (Article 136 of the Labor Code of the Russian Federation).

Issuance of work books on the day of calculation

On the last day worked, the reduced person must receive in his hands all the material payments due to him and the completed labor, art. 140 TC. You also need to remember to write him a certificate of salary and insurance payments and accruals for two full years and for the current period. For example, upon dismissal due to staff reduction in April 2019, a salary certificate is issued for the full 2017-2018 and for January-March 2019.

For those who plan to apply to the labor exchange for help in finding a job, a certificate of average salary for the last quarter of work is issued. In addition, at the request of the dismissed person, he must be given copies of all personnel documents related to the period of his work at the enterprise.

What to do with the category of "non-dismissed"?

In the process of selecting candidates for redundancy dismissal, the employer is forced to reckon with the requirements of two main articles of the Labor Code of the Russian Federation.

Article 261 defines the circle of employees who, in principle, do not fall under the reduction (except in cases of complete termination of the organization or entrepreneur).

Article 179 of the Labor Code of the Russian Federation defines the circle of persons who, under equal qualifications and performance indicators, have the additional right to maintain an employment relationship.

Pregnant and single mothers with a minor disabled child. Moms on vacation up to 3 years old and single moms raising at least one child up to 14 years old. The only one that brings income to a family where there are at least 3 young children, one of whom is under three years old. Persons replacing a single parent for all of the above categories of children.

Family workers with two or more dependents. Usually, these are children, but there may be other relatives who require guardianship and for some reason are deprived of state assistance. The only breadwinners in the family, for example, if the wife takes care of the children or this moment one of the spouses is temporarily unemployed. Persons who suffered at this enterprise and partially lost their ability to work as a result of the injury. Students in the direction from the company itself. WWII veterans and combat invalids.

When reducing the number within one position, the listed employees cannot be removed from their place at all. With a reduction in staff and the abolition of a position, you can try to negotiate a transfer to another. The main thing is to get the voluntary consent of such an employee. Most often, for this it is enough to maintain the level of wages and some significant labor guarantees (duration of vacation or working conditions).

This category of workers receives only an additional argument in favor of remaining in their place. If at the same time they do not have sufficient experience or make mistakes in their work, then the employer may prefer a more responsible employee to them.

Article 179 of the Labor Code of the Russian Federation does not contain a direct ban on the reduction of the listed employees. It only pays attention to the categories of conscientiously working qualified specialists who, according to legislators, deserve additional labor guarantees.

How to calculate the layoffs due in 2019?

severance pay

The calculation is carried out taking into account the provisions of Decree No. 922. For this, all payments related to the wage fund for the previous 12 fully worked months are summed up. The average daily rate is determined by dividing the resulting amount by the actual number of days worked. Then, to determine the size of the severance pay, this value will need to be multiplied by the calculated number of working days in the calendar month following the day of dismissal. If the employee's remuneration was calculated according to the summed time, then it is necessary to calculate the average hourly rate for the previous year.

In the event that shortened days are found in the working period that do not fall into the calculation (clause 5 of Decree No. 922), the amount of payments for the specified period must be excluded from the amount of income.

Compensation for unused vacation

Compensation must also be calculated on the basis of Decree No. 922. The only difference in the calculation is that the amount of annual income must be divided by 12, and then by 29.3 more to determine the employee's average daily calendar rate. Accordingly, the result obtained is multiplied by the number of calendar days of non-vacation leave.

Maintained average earnings for the period of finding a new job

Such a payment is made only if a person is registered as unemployed, but its period will not exceed 3 months. It is calculated in the manner described in clause 9 of Decree No. 922. The transfer is carried out according to the data of the employment center on the process and prospects for new employment. There is one feature in the process of paying salaries for a difficult period of job search, the amount of the severance pay issued on the farewell day of work is deducted from it. Severance pay is calculated based on the number of working days in the period (clause 9 of Decree No. 922), compensation for unused vacation - based on calendar days (clause 10 of the same Decree).

How to apply for a job?

AT labor worker, traditionally, literally transfer the wording inscribed in the dismissal order. In the column where data on admission, transfer or dismissal is entered, an entry is made: “Dismissed due to staff reduction / liquidation of the enterprise”. Depending on the reason for the reduction, the paragraph of the first part of Article 81 of the Labor Code of the Russian Federation is also selected. Reduction of staff or number - point 2, complete liquidation of the organization - point 1.

Employee agrees to leave early

On their own initiative and guided by internal reasons, the employer may offer the specialists warned of the reduction to leave ahead of time. After all, a notice of an impending staff reduction does not add to the employee's enthusiasm for work, and a new position may turn up faster than expected. Therefore, a person may express a willingness to speed up the process by early dismissal (part 3 of article 180 of the Labor Code of the Russian Federation). The law prudently obligated the employer to pay the days remaining until the date specified in the notice at the average wage. To do this, the employee himself needs to apply with a statement to the management and please him that he is ready to compromise.

Sometimes an employer is tempted to take advantage of gaps in a person's legal knowledge. Then the person warned about the reduction is offered to sign a statement with a personal request to dismiss him without working off the remaining period. A document signed with this wording gives the right to believe that the employee himself decided to terminate the employment contract under Art. 80 or art. 78 of the Labor Code of the Russian Federation. And this, practically guaranteed, deprives a person of most of the cash payments and material support during the period of attempts at subsequent employment.

A correctly drafted application should express the main idea: the employee was notified of the date of the upcoming reduction, he refused to occupy the vacant positions offered to him, therefore, he agrees to the early dismissal proposed earlier in order to reduce the staff. Additionally, it must be indicated that the person expects to receive all the required benefits and compensations in accordance with all parts of articles 127, 178 and 180 of the Labor Code of the Russian Federation.

Article 180 of the Labor Code of the Russian Federation offers the employer to early dismiss the employee with his consent, but does not oblige him to do this if the employee himself declares this unilaterally.

Final list of documents for the employer

In order to avoid problems in case of potential labor disputes, after the successful completion of the staff reduction procedure, the employer must have the following documents in hand:

1. Minutes of the meeting of participants.
2. Order on the new staffing table with the date of entry into force after the dismissal of the reduced employees.
3. Order on the abolition of the "old" staff.
4. The act or protocol of the meeting of the commission for the approval of candidates for dismissal in the order of reduction.
5. Written consent of the trade union or its recommendation.
6. A copy of the information submitted to the employment service.
7. Originals of the Reduction Warnings for each employee with their personal signature or the Certificate of Refusal of Receipt, certified by witnesses.
8. Written consent or categorical rejection of the proposed vacancies for each employee, on which their opinion and signature are personally affixed.
9. An order to transfer to a new field or dismissal of selected employees.
10. A document with a handwritten list confirming familiarization with the list of accruals and payments, a signature on the receipt of labor and other personnel documents.

The package of papers is impressive, but the absence of any of the above can cost the employer dearly if the employee perceives his dismissal as illegal, and his requirements are supported by the regulatory authority or the court.

What is an "invalid" reduction, or how to avoid a labor dispute?

The Labor Code does not directly oblige the employer to explain to someone the reasons and justification for the reduction of employees. However, the frequency of occurrence of labor disputes and the judicial practice of making decisions based on the results of their consideration still call for being prepared for hard-hitting questions. If the company really decided to reorganize or radically change the profile of its activities, then you need to stock up on evidence in advance. After all, a dismissed employee may not agree with the reasons for his reduction and will go to seek the truth in court.

Unscrupulous employers can take advantage of the opportunity and, by simply renaming a department or position, get rid of some employees while recruiting new specialists. For example, disband the sales department and cut all managers, and in parallel, create a sales and promotion department and hire sales specialists. Managers reduced according to this scheme, who are not accepted into the newly created division, can go to court and already there achieve reinstatement. The employer, on the other hand, will be obliged to compensate financial damage in connection with forced absenteeism during the period of proceedings, from the moment of illegal dismissal, and in addition also moral damage.

Another mistake is the restoration of old positions a few months after the reduction in staff or an increase in the number of specialists in optimized departments. Such short-sighted actions of management can also become grounds in court for the reinstatement of laid-off workers. Even if you change the names, change the list of labor functions and the level of workload. If the qualification requirements for hired employees remain the same, then the court may consider this as a failure of the employer's obligation to employ the laid-off workers and search for suitable vacancies.

Moreover, the enterprise that carried out the reduction of staff, with the subsequent restoration of the number of the same specialists, will be obliged to submit information to the employment authorities about the vacancies that have appeared. Then a situation uncontrollable by the employer may develop, and the previously reduced employee, registered as unemployed, will be sent to his old employer. Firstly, it will be quite difficult to refuse such an applicant for a job. Second, a legitimate question may arise as to the validity of the initial reduction. The court may also recognize the former employee's doubts as justified.

It is also worth considering that after the issuance of an order about the inevitability of the upcoming reduction, suspend the admission of employees to vacant work places from outside. At least until there is clarity on the issue of transfers and employment of the company's laid-off workers.

Although the Labor Code does not oblige to explain the reasons for the reduction of staff, it should still be carefully prepared justification. In the event of a labor dispute, the employer will be forced to prove that the procedure was carried out really, and not fictitiously.

Complete liquidation of the enterprise: how to reduce the number and staff?

The decision taken by the owners of the enterprise or the entrepreneur on the complete liquidation and termination of commercial activities exempts the employer from having to comply with only one restriction. Such an entity has no obligation to worry about the transfer and employment of "special" employees. The relevance of the execution of some documents confirming the validity of the reduction is no longer relevant.

Otherwise, the procedure for carrying out this procedure does not differ from that described. I am glad that even under such circumstances, the dismissed employees will not suffer financially, they will receive all compensation payments prescribed by legislators without cuts and delays.

Question answer

The downsizing employee has accumulated vacation days, and he wants to issue a dismissal only after using his vacations. Is it possible to simply pay compensation and oblige to work until the planned cutoff date?

The employer has no obligation to provide the employee with leave before the date of termination of the employment contract. Moreover, it would be reckless to send the reduced employee on vacation if the number of accumulated days exceeds the duration of the reduction warning. After all, dismissal under Article 81 of the Labor Code during the period of annual rest is not allowed. So the publication of the dismissal order will have to be postponed until the end of the holiday.

Although, the employer can go for this option if he can manage all this time without a departing specialist. One of the advantages will be the ability to save on compensation for non-vacation time.

The employee went on sick leave on the last day before the end of the warning period. How to make a layoff?

The employer is powerless to reduce even a timely warned employee during a sudden illness or vacation, this prohibits part 6 of Art. 81 of the Labor Code of the Russian Federation. It will be possible to complete the dismissal procedure only at the end of the period of incapacity for work, you can issue an order about this on the day you appear at work after recovery.

Does the "latest come" rule work?

There is a belief that "old" employees can feel safe and not be afraid of layoffs. It can only be supported by high qualifications, many years of conscientious work in the company, laudatory reviews from the authorities on the relevant pages of the work book and the absence of disciplinary sanctions for Last year. If they cannot boast of production success, then a long work experience is not the strongest argument in favor of the priority right to continue working. At least Art. 179 of the Labor Code of the Russian Federation does not imply such a guarantee.

The department employs a disabled person and a pensioner with 30 years of work experience and higher education in their specialty. Who to cut?

You should compare the positions of employees. If the employee's disability is due to a general illness. and did not happen at this enterprise, then he has no advantage over the pensioner. Moreover, both employees have a guaranteed income in the form of a pension, so the decision to keep one of them in office will be made only on the basis of qualification and performance indicators (Article 179 of the Labor Code of the Russian Federation). The first criterion is the availability of special education and work experience. Next, you need to evaluate the quality and completeness of the performance of labor duties. One of the arguments in this comparison there will be a count of the number of days of disability for each of the applicants, as a performance characteristic.

The position of each of the employees may cause human sympathy, but the law does not distinguish between them and does not give an advantage. The employer will have to make the final choice using general provisions Labor Code.

Can they cut external part-time worker without warning and payment of severance pay?

An external part-time worker at an enterprise is often perceived as an outsider. Nevertheless, a specialist working for several employers is an equal participant in the labor process, which means that the Labor Code guarantees him the same protection as for full-time (main) employees. When reducing, the part-time worker must come to terms with the fact that he cannot count on receiving financial support from his native enterprise while looking for a new part-time job. The problem is that such a payment is due to those who will be recognized as unemployed in accordance with Article 3 of Law No. 1032-1 (an able-bodied person without a stable source of income). An exception was made only for a part-time worker who had lost his main place by the time of the reduction.

Lawyer of the Board of Legal Protection. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other normative documents to regulatory authorities.

Reducing the number of employees is one of effective ways cut costs or slow down production activities if the organization's product is no longer profitable. In the article we will tell you how to avoid mistakes when reducing the staff.

If the employer decides to reduce the number of employees, he needs to take into account all the nuances of this complex process. The mistakes made do not reduce, but, on the contrary, significantly increase the cost of personnel.

For example, the court may reinstate an employee at work and oblige the employer to pay him the average earnings for the entire period of forced absenteeism (Article 394 of the Labor Code of the Russian Federation, hereinafter referred to as the Labor Code of the Russian Federation), as well as compensate for moral damage (Article 237 of the Labor Code of the Russian Federation). In this case, the employer is obliged to pay all legal expenses (Article 88 of the Civil Procedure Code of the Russian Federation).

In addition, if an employee applies for the protection of his rights to the labor inspectorate, if the reduction is incorrectly drawn up, the employer faces administrative liability under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

Consider typical mistakes that employers do when they make redundancies.

1. INCORRECTLY DEVELOPING THE NOTICE OF REDUCTION

When warning employees about layoffs, it is necessary to take into account all the requirements of the law, as well as established practice, in order to reduce the risk of disputes in the future. We recommend that you issue a notice of reduction in the number (staff) of employees. The more detailed the document is, the less questions, misunderstandings and irritation it will cause among employees (Example 1).

2. EMPLOYEES ARE NOT NOTIFIED OF REDUCTION OR HAVE BEEN NOTIFIED IN VIOLATIONS

An important nuance is that absolutely all laid-off workers must be warned about the reduction and on time.

According to the second part of Art. 180 of the Labor Code of the Russian Federation, the employer is obliged to warn employees in writing against signature of their reduction at least two months before dismissal.

If the employee refuses to read the notice or sign for familiarization with it, then the employer will have to read the notice aloud to the employee and draw up an act in which two or three employees who were present at the time of familiarization must sign (Example 2).

However, there are exceptions to the notice period for an employee.

Several days notice. For example, if a fixed-term employment contract is concluded with an employee for a period of up to two months, then he must be warned about the reduction in writing at least three calendar days in advance (part two of article 292 of the Labor Code of the Russian Federation). An employee who is engaged in seasonal work should be warned in writing about the reduction at least seven calendar days in advance (part two of article 296 of the Labor Code of the Russian Federation).

Notice of sickness and vacation. If the employee needs to be notified of the reduction, and he is on vacation or on sick leave, it is better to wait for him to go to work and hand the notice in person. But if this remote worker or management requires to notify the employee despite the vacation?

In this case, you need to send a notice of reduction to all known addresses where the employee is located by a valuable letter with a list of attachments and a notice of receipt (Example 3). The date of notification is the date the employee receives the valuable letter.

If the employee is available on the phone, you should call him and tell him about the need to receive a notification. Moreover, this must be done on a speakerphone and in front of witnesses. The conversation must be recorded in an act (Example 4). Such an act speaks of the employer's good faith and confirms that he has done everything possible to notify the employee of the reduction.

3. DO NOT OFFER ALL SUITABLE JOBS

If there are vacancies in the organization, they should be offered to the reduced employee (if they are suitable for him in terms of qualifications and health status) as they appear within two months, while the notice period for dismissal due to reduction is in effect (part three of article 81 of the Labor Code of the Russian Federation) .

Often, the courts reinstate workers precisely because they were not offered all the vacancies. The courts carefully check whether the positions in the staff list and in the job offers coincide (see, for example, the Appeal ruling of the Krasnoyarsk Regional Court dated February 2, 2015 in case No. 33-949 / 2015, A-9).

It is necessary to offer not only positions corresponding to the qualifications of the employee, but also subordinate ones.

QUESTION TO THE TOPIC

Do I need to offer a vacant higher position?

If you know for sure that the qualifications are insufficient, you do not need to offer this vacancy (see the Appeal ruling of the Moscow City Court dated March 30, 2015 in case No. 33-10408 / 2015).

But if it is not known for sure whether an employee can occupy a higher position (perhaps he has undergone additional training or he has experience that is not reflected in the work book), the risk of disputes increases. To do this, we propose in the notice of reduction to report on qualification documents unknown to the employer (see Example 1).

Thus, you need to ensure that there are no extra vacancies in the staff list (just in case). All vacancies that are not yet searched should be excluded.

The employer is obliged to offer vacancies only in the given locality, unless otherwise provided by the labor or collective agreement (see the Appeal ruling of the Moscow City Court of December 24, 2012 in case No. 11-25754).

It should be noted that the position held by a woman on maternity leave is not considered vacant in the opinion of most courts (see, for example, Ruling of the Moscow City Court dated May 29, 2014 No. 4g / 8-3516). This position is temporarily vacant - after all, a woman can return, and we do not know when - in three months or in three years.

4. REDUCING "PROTECTED" WORKERS

Although defining organizational structure and staffing - the right of the employer, the law protects certain categories of workers who need state support. "Protected" workers include:

Pregnant woman (part one of article 261 of the Labor Code of the Russian Federation);

A woman who has a child under the age of three (part four of article 261 of the Labor Code of the Russian Federation);

A single mother raising a child under 14 years of age or a disabled child under 18 years of age (or a person raising such a child without a mother) (part four of article 261 of the Labor Code of the Russian Federation). According to paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 28, 2014 No. 1, a single mother is considered a woman who brings up her children (relative or adopted) and is engaged in their development independently, without a father. In particular, if the father:

Died, recognized as missing (you need to ask the employee for a death certificate, a corresponding court decision);

Deprived of parental rights, limited in parental rights (corresponding court decision);

Recognized as incapable (partially incapacitated) or for health reasons cannot personally raise and support a child (court decision or certificates, for example, on disability);

Serving a sentence in institutions that carry out punishment in the form of deprivation of liberty (corresponding certificate);

Avoids raising children or protecting their rights and interests. It's about about divorced women who applied for the recovery of alimony to the court and the bailiff service, but, despite this, it was not possible to recover the alimony (certificate from the bailiff service that it was not possible to recover the alimony);

Other situations (for example, when the paternity of the child is not established and there is a dash in the birth certificate);

A parent, if he is the sole breadwinner of a child under three years of age or a disabled child under 18 years of age in a family of three or more children under 14 years of age, and the other parent (representative of the child) is not a member of labor relations(part four of article 261 of the Labor Code of the Russian Federation).

To reduce the risks of litigation, it is better not to lay off such workers.

Also note that employees under the age of 18 can be fired due to layoffs only with the consent of the labor inspectorate and the commission on minors (Article 269 of the Labor Code of the Russian Federation).

In addition, if an employee is a member of a trade union, he can be fired only in agreement with the primary trade union organization(part two of article 82, 373 of the Labor Code of the Russian Federation).

And finally, do not dismiss an employee during his period of temporary disability and during his vacation (part six of article 81 of the Labor Code of the Russian Federation, subparagraph “a” of paragraph 23 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

5. THE PRIORITY RIGHT TO STAY AT WORK IS NOT ACCOUNTED

With such a problem, when reducing, you can encounter if there are several positions of the same name in the staffing table. For example, there are three sales managers in a department, and only one needs to be cut. In this case, the first part of Art. 179 of the Labor Code of the Russian Federation requires that the employer, during the reduction, leave at work workers with higher labor productivity and qualifications.

Qualifications can be checked against the document on education and work book, however, the assessment of labor productivity will require certain efforts from the employer.

• How to evaluate labor productivity? It is not difficult to assess the productivity of working personnel - it is enough to find out whether employees comply with labor standards (time and output). The situation is much more complicated when it comes to evaluating the productivity of knowledge workers. Here are some hints:

1. If the organization conducts an annual assessment of personnel, we recommend that you attach its results. The results of the attestation, if any, will also be useful.

2. If the organization has established bonus indicators, the productivity of employees can be assessed by the size and frequency of bonuses accrued to them. You can also take into account the regular execution additional work(for example, part-time or by special order). We recommend to evaluate the work discipline of the employee. If discipline is low or there are comments, reprimands, then such an employee has no preemptive right.

• How to document performance appraisal. The first step is to issue an order to create a commission to determine the pre-emptive right to leave at work. The order must contain the following provisions:

The results of the assessment must be indicated in the minutes of the meeting of the special commission. In court, the protocol is proof that the employer has taken into account the preferential rights of employees. Tables should be attached to the protocol with an assessment of the fulfillment by employees of production or service standards, plans, instructions, etc. (see table).

If the productivity and qualifications of workers in the same positions are approximately equal, you should go further and give priority to the following categories (part two of article 179 of the Labor Code of the Russian Federation):

Family with two or more dependents;

Persons in whose family there are no working family members;

Employees who, while working in the organization, received an industrial injury or occupational disease;

Disabled people of the Great Patriotic War and military operations;

Employees who improve their skills on the job in the direction of the employer;

Such employees should be asked to provide supporting documents. For example, an employee with two or more children must provide birth certificates, as well as a passport with registration confirming residence with children; combat invalid - certificate.

6. DO NOT NOTIFY THE EMPLOYMENT SERVICE AND THE TRADE UNION

In accordance with paragraph 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032 - 1 "On employment in Russian Federation”(as amended on 07/29/2017, hereinafter - Law No. 1032-1) to reduce the number or staff, even if only one position or one employee is reduced, the employment service must be notified no later than two months in advance. If the reduction is massive - three months before the start of the reduction. Each region has its own form of notification. It should be specified on the websites of the employment service of the regions. Let's give an example of a notification for Moscow (Example 5).

The criterion of mass character is determined by sectoral, territorial or regional agreements between trade unions and employers (part one, article 82 of the Labor Code of the Russian Federation).

If these agreements are not applicable to a particular employer, paragraph 1 of the Regulations on the organization of work to promote employment in conditions of mass dismissal (approved by Government Decree No. 99 of February 5, 1993) should be followed.

According to the first part of Art. 82 of the Labor Code of the Russian Federation, if the organization has a trade union, it must be notified within the same time frame (Example 6).

7. PERSONNEL DOCUMENTS ARE ISSUED WITH ERRORS

Errors in the execution of personnel documents can lead to fines and even to the reinstatement of an employee. To avoid them, it is necessary to carefully draw up his dismissal on the last day of work (paragraph two of the first part of the first article 84.1 of the Labor Code of the Russian Federation, clause 35 of the Decree of the Government of the Russian Federation of April 16, 2003 No. 225).

Below we list the actions of the employer on the last working day of the dismissed employee.

With the order of the employee must be familiarized with the signature. In case of refusal to familiarize, it is necessary to draw up an appropriate act, which must be signed by two or three employees (Example 8).

• We make a note-calculation. A note-calculation is a mandatory document for publication and is sent to the accounting department on the day the employee is dismissed. It is issued either unified form No. T-61 or in the form approved by the organization. In it, the personnel officer reflects the number of days of unused or used leave in advance (Example 9).
• We make an entry in a personal card. An entry must be made about the dismissal of an employee in section XI of the personal card of form No. T-2, with which the employee must be familiarized against signature (Example 10).

• Issue a work book. On the day of dismissal, the employee must be given a work book with a record of dismissal (Article 84.1 of the Labor Code of the Russian Federation) against signature in the work book record book (Example 11).

If an employee refuses to receive a work book, an act must be drawn up about this signed by two or three employees (Example 12).

If the employee did not appear for the work book, it is necessary to send him a notification before the end of the working day about the need to pick up the work book (Example 13) or give written consent in any form to send it by mail (part six of article 84.1 of the Labor Code of the Russian Federation). It is better to send a notification to all known addresses of the employee in order to increase the likelihood of receiving it.

• We issue certificates. Upon dismissal, the employer is also obliged to issue to the employee:

A certificate of the amount of his earnings, on which accrued insurance premiums to the Social Insurance Fund (part 2 of article 4.1 federal law dated December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with motherhood”);

Certificate with information on accrued and paid insurance premiums in Pension Fund Russian Federation (Article 11 of Federal Law No. 27-FZ of April 1, 1996 “On Individual (Personalized) Accounting in the Compulsory Pension Insurance System”).

8. LEAVING THE STAFF

The position of the dismissed employee must be excluded from the staff list on the day after his dismissal. If an employee is dismissed on September 30, then from October 1 this position should not be on the staff list.

At the same time, it is necessary to refrain from introducing the same or similar position for several months (see the Appeal ruling of the Novosibirsk regional court dated 05.05.2015 in case No. 33-3752/2015).

9. THE EMPLOYEE IS WRONGLY ESTIMATED

On the day of dismissal, the employer must pay employees a severance pay in the amount of the average monthly earnings, wages and compensation for unused vacation.

The amount of wages is determined in the amount that is due to the employee for the time actually worked in a given month. Compensation for unused vacation must be calculated in accordance with Art. 121 of the Labor Code of the Russian Federation.

If on the last day of work the employee is not paid off, the employer must pay the employee interest under Art. 236 of the Labor Code of the Russian Federation in the amount of not less than 1/150 of the key rate of the Central Bank of the Russian Federation in force at that time for each day of delay, regardless of the fault of the employer. The employer is obliged to pay the average earnings for the second and third months if the employee has not found a job.

To receive benefits for the second month, the employee will need to provide the employer with an identity card, an original work book without work records after the cutoff date.

If an employee has not found a job and wants to receive severance pay for the third month, he must comply with the following conditions:

Within two weeks after dismissal, register with the employment authority as unemployed;

Be unemployed by this employment agency within the third month after dismissal;

Provide the employer with the decision of the employment authority on the payment of the average monthly salary to the employee for the third month.

If the employment service makes such a decision, the benefit will have to be paid for the third month.

Note: if the organization or its branches are located in the regions of the Far North or areas equivalent to them, then in accordance with Art. 318 of the Labor Code of the Russian Federation, the average earnings of laid-off workers remain for up to three months. In exceptional cases - up to six months (by decision of the employment service).

In conclusion, we present step by step algorithm reduction in the number of employees (flowchart).