Law on layoffs. How to file a redundancy notice? A claim may be made

Job loss is almost always unpleasant event. But it is one thing when a former employee is seen off with honor and gratitude for the work done, and another thing is when the dismissal occurs due to problems in the company itself, and even in a fraudulent way. Unfortunately, more than half modern organizations sin precisely the second type of dismissal. And naive citizens allow the leadership to violate their rights. To prevent this from happening, you need to know at least the basic nuances of the procedure for leaving work. In this case, we will consider what should be the procedure for dismissal to reduce staff.

Dismissal by reduction - memo to employees

The layoff procedure for downsizing is a headache for many companies. Loopholes that can facilitate this process, reduce costs and bypass the labor code are sought in almost every organization. And unfortunately, they are often found. To prevent this from happening, it is worth taking note of how the redundancy dismissal procedure should actually take place.

1. Any company should provide its employees with redundancy notice not later than two months before the actual reduction in the number of personnel occurs. Apart from general meeting and information on the stand, the leaders of the organization must convey the information to each employee personally and receive confirmation by his signature.

2. The conditions for dismissal by reduction consider the option in which the management can offer an employee who is deprived of his position other vacancies corresponding to his experience and qualifications. But most often this does not happen, because employees are not aware of the existence of such a duty of their management.

3. Another important nuance that you need to pay attention to is early dismissal due to redundancy. This situation occurs when an employee who has been laid off has expressed a desire to quit ahead of schedule due to employment in a new job. In this case, the organization has no right to interfere with the employee. With regard to compensation, the employee has the right to count on an additional payment in the amount of average earnings calculated in proportion to the time left before the expiration of the notice of reduction.

4. Reduction payouts. If a corresponding entry is made in the work book, the employee is entitled to the following compensation upon dismissal by reduction:

1. Not later than last day of work, the employee must receive a calculation in the amount of the salary for the last month of work + compensation for all unused vacations
2. Together with the calculation, the employer is also obliged to pay in advance the severance pay for the first month of the employee's unemployment. If the employee has not found a job within two months, the employer must pay another allowance in the amount of the average monthly earnings. Provided that 14 days after the dismissal, the employee registered with the Employment Service, but 3 months after the reduction he still found a job, he is entitled to another severance pay upon dismissal due to reduction and temporary unemployment.
3. Reduction benefits. In the event that an employee who has been laid off and registered with the Employment Service has not found a job within 3 months, starting from the first day of the 4th month of unemployment, he is entitled to receive benefits. It will be paid by the Employment Service in the following order:

• starting from the fourth month after the dismissal for reduction and the next 3 months: 75% of the average monthly salary;
• the next 4 months - 60% of the average monthly salary;
• from the 8th to the 12th month - 45%.

Also, an employee who has fallen under the dismissal for reduction has the right to:

In order for all the listed benefits to be available, an employee dismissed due to a reduction in staff must contact the employment service at the place of residence within 14 calendar days from the date of dismissal.

If the conditions for dismissal by reduction described above were violated by the employer, the employee has the right to go to court. The law will always be on the side of the worker, in whatever country he may be. Each person is obliged to know their rights, and for this, at least sometimes it is worth looking into the labor code.

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 downsizing. 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 justification 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. 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 amount of 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), it is necessary to exclude from the amount of income and the amount of payments for specified period.

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. The severance pay is calculated based on the number of working days in the period (clause 9 of Resolution No. 922), compensation for unused vacation- based on calendar days (clause 10 of the same Decree).

How to apply for a job?

Traditionally, the wording entered in the dismissal order is literally transferred to the worker. 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 state. 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 labor disputes and arbitrage practice decision-making based on the results of their consideration, they still urge to be 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 reduce 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 a qualification requirements to hired employees will 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 for them.

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 can also admit doubts former employee 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 to complete elimination and termination 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?

Obligation to provide the employee with leave earlier than the date of termination labor contract the employer does not. 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 disciplinary actions behind 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 by specialty. Who to cut?

You should compare the positions of employees. If an employee's disability is due to common disease. 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 the position 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.

A considerable number of documents will have to be issued by the personnel officer if the organization is undergoing a procedure for reducing the number or staff. At the same time, there are documents that he will have to draw up in any case, and there are those that are drawn up only in some situations, but also quite often.

Main content of documents

Just as the theater begins with a hanger, so “organizational” actions begin with an order, on the basis of which measures will be taken to reduce and draw up Required documents. The reduction order (and / or staff) must contain the date of the proposed reduction, since the employer is obliged to notify employees who will be affected by this at least two months in advance. Looking at the resolution of the State Statistics Committee dated 05.01.2004 No. 1 “On approval unified forms primary accounting documentation for accounting for labor and its payment "and making sure that there is no standard form for such an order, we draw it up in an arbitrary form (see Example 1).

Read about the reduction procedure through the eyes of judges in the article "The procedure for reducing the staff of an organization: judicial practice"

Note

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Downsizing and downsizing - different concepts. When the staff is reduced, the position or profession (for example, driver) is excluded from the staff list. By reducing the number, the personnel officer only reduces the number of staff units that occupy a certain position (or work by profession). At the same time, the position (profession) itself remains (for example, there were five drivers, and after the reduction in their number, two remained).

Therefore, in practice, there may be:

• downsizing and downsizing;
• downsizing (when only vacancies are excluded from the staff list);
• downsizing.

Example 1

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The next step is to draw up notices of the upcoming reduction for employees (see Example 2) and the employment service (see Example 3). Employees should be notified in writing and under their personal signature no later than two months before the planned termination employment contract; if the dismissal is massive, then at least three months in advance (Article 180 of the Labor Code of the Russian Federation).

To notify the employment service orders paragraph 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment in Russian Federation". This must also be done no later than two months before the start of the reduction (if the dismissal is massive, then no less than three months), indicating the position, profession, specialty, qualification requirements and conditions for remuneration of workers. Criteria for mass layoffs are determined in industry and (or) territorial agreements. If they are not in the relevant agreements, one should be guided by 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”.

The law does not specify which territorial body should be notified - at the place of registration of laid-off workers or at the location of the employer. However, the Decree of the Moscow City Statistics Committee of May 26, 1997 No. 4 “On Approving the Form of Regional State Statistical Observation” approved the form according to which information on employees laid off in the process of reduction (liquidation of the organization) should be submitted to the employment service at the place of registration of the organization. See Example 3 for filling out the form. In other regions, forms approved by local statistical monitoring bodies are valid. If there is no approved form, the notification can be drawn up in any form (see Example 4).

Example 2

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Example 4

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Since the unemployment benefit for the laid-off worker will be calculated based on the average earnings received by him over the past three months, the employment service requires the provision of a relevant certificate from the place of work. As a sample, you can take the form of a certificate of average earnings, approved by order of the UGSZN of the city of Moscow dated August 10, 2007 No. 172.

Learn more about compiling a certificate of average wages for employment agencies, read the article "We issue a certificate for the employment service" on page 44 of magazine No. 9 "2012

On the last working day (aka the day of dismissal), the personnel officer fills out the dismissal order to reduce the number and / or staff in the form No. T-8, approved by the Decree of the State Statistics Committee of Russia dated 05.01. work book(Example 6). The final settlement of wages and other payments due to him on the date of dismissal is carried out with the employee (part 4 of article 84.1 of the Labor Code of the Russian Federation).

Example 5

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Example 6

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What else might be needed

What other documents in some cases will have to be issued by the personnel officer during the reduction? So, if the employee refuses to sign the notice of reduction, an act should be drawn up (see Example 7). This paper is drawn up in the presence of two witnesses and is evidence that the employee was notified of the upcoming dismissal.

In addition, if an organization has an elected body of a primary trade union organization (hereinafter referred to as PPO), it is required by law to notify it as well (Example 8). According to Art. 82 of the Labor Code of the Russian Federation, this must also be done no later than two months (in case of mass layoffs of workers - at least three months) before the proposed dismissal.

If the employee being laid off is a member of a trade union, then the notification should be sent to the elected body of the PPO before the issuance of the order and a reasoned opinion should be requested in the manner prescribed by Art. 373 of the Labor Code of the Russian Federation.

In conditions where an employee is simultaneously the head (deputy head) of an elected collegial body of the PPO, an elected collegial body of a trade union organization of a structural unit of an enterprise (not lower than a shop floor and equivalent to them), he can only be dismissed with the prior consent of the relevant higher elected trade union body (Article 374 of the Labor Code of the Russian Federation).

All existing grounds for the dismissal of employees at the initiative of his employer, provided for in the Labor Code of the Russian Federation, can be divided into 2 types:

The most common at present is dismissal of employees during staff reduction, without their guilt(Article 81, clause 2, part 1 of the Labor Code of the Russian Federation).

For an organization, the calculation of employees for reduction is one of the most expensive procedures. So in many firms they prefer to count employees in a cheap way - at will.

• there should really be a downsizing;
• the choice of employees who are to be laid off due to redundancy should take into account the advantage of remaining at work (Article 179 of the Labor Code of the Russian Federation);
• there should be a written warning for each employee against signature about the upcoming reduction;
• sometimes an employee can be transferred to another place;
• exchange warning;
• payment of severance pay.

During the crisis, the reduction of employees is a measure to optimize the work of the organization. According to the Labor Code, it can take place as by reducing workers, and by eliminating existing jobs.

The following actions confirm the reduction of the staff:

1. Appropriate changes are made to the staffing table;
2. An order is issued, which indicates that it is necessary to adopt a different staffing table. Cannot be dismissed before this schedule is adopted;
3. Reduction order;
4. For each candidate, an extract is made for dismissal;
5. Those dismissed put their signatures and the date under the issued order on the upcoming reduction in staff (two months in advance);
6. An act is provided on the proposed other work to the employee or other position;
7. An act of disagreement of the dismissed employee from the offer of another job to him (dates and signature of the dismissed person) - in case of disagreement or in case of consent, prepare an Act of consent of another proposed job (date and signature);
8. Notification letter to the stock exchange, three months in advance;
9. where it is necessary to have the signature and date of the dismissed person;
10. Payment documents signed by the dismissed person himself, that he received payments in accordance with the law.

Severance pay and compensation: payment procedure

accrual Money to reduce occurs under article 178 of the Labor Code of the Russian Federation.

The dismissed person is paid an allowance in the amount of a month, and the average monthly salary is retained for him until he finds a job, however, no more than 2 months from the date of departure (including severance pay). Sometimes, average earnings per month is retained for 3 months from the date of dismissal, if only the employment service allows, if there is a certificate confirming that the employee is still unemployed.

Another compensation in the amount of 2 average earnings (i.e. plus severance pay) can be received if the employer did not warn the dismissed person 2 months in advance.

Going to court

An employee, according to the Labor Code, dismissed due to staff reduction, without carrying out the reduction procedure established by law, can sue. The court, as a rule, in such cases, is on the side of the employee. If you neglect one of the items from the list of reductions, then the reduction will be invalid.. In this case, the employer will be forced to pay wages during litigation. It will force the court to pay moral compensation and reinstate the dismissed person. From the point of view of the Labor Code of the Russian Federation, an employee is currently more protected than the organization that fired him.

The employment contract may be terminated by the employer in cases of reduction in the number or staff of employees of the organization, individual entrepreneur.

1. Making a decision to reduce the number or staff of employees. Approval of the new staffing table.

The employer makes a decision to reduce the number and / or staff of employees and draws up it.

At least two months before the expected start of layoffs "by reduction", and if the proposed layoff is massive, then at least three months before, the employer issues an order (instruction) to reduce the number or staff at the enterprise. The order (instruction) indicates the reason for the reduction, establishes the persons responsible for the measures taken in connection with the reduction in the number and staff of employees, the timing of these events.

Following step-by-step procedure for downsizing and staffing remember that the dismissal of an employee can only be made after the exclusion of his position from the staff list, and in no case in connection with the planning of such an exception in the future. Therefore, a new staffing table must first be approved (or changes are made to the current staffing table), and only after that the number and staff of employees can be reduced. The new staffing table (as well as changes to it) is approved by order (order). The order sets the date for the entry into force of the new staffing table.

2. An order (instruction) to reduce the number / staff, an order (instruction) to approve the staffing table are registered in the manner prescribed by the employer, for example, in the appropriate register of orders (instructions). The order is communicated to employees.

3. Written notification of the employment service authorities about the upcoming release of workers.

According to part 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 "On Employment in the Russian Federation" when deciding to reduce the number or staff of employees of an organization, an individual entrepreneur and the possible termination of employment contracts employer-organization no later than two months, and an employer - an individual entrepreneur - no later than two weeks before the start of the relevant activities are obliged to notify the employment service authorities in writing about this.

In such a message, you must specify the position, profession, specialty and qualification requirements for them, the terms of remuneration for each individual employee.

The deadline for reporting to the employment service authorities will be even longer if the decision to reduce the number or staff of the organization's employees can lead to mass layoffs of employees. In these cases, it is necessary to notify the employment service authorities of the mass reduction no later than three months before the start of the relevant activities.

The message sent to the employment service authorities is registered in the manner prescribed by the employer, for example, in the register of outgoing documents.

4. We determine which specific employees cannot be fired by law, and which have the right to preferential retention at work.

There are workers who cannot be fired by law, and workers who have a preferential right to stay at work. According to Art. 261 of the Labor Code of the Russian Federation, termination of an employment contract at the initiative of the employer with pregnant women is not allowed, except in cases of liquidation of the organization or termination of activity individual entrepreneur. According to part 4 of Art. 261 of the Labor Code of the Russian Federation “termination of an employment contract with a woman who has a child under the age of three, with a single mother raising a disabled child under the age of eighteen or a young child - a child under the age of fourteen, with another person raising these children without mother, with a parent (other legal representative of the child) who is the sole breadwinner of a disabled child under the age of eighteen or the sole breadwinner of a child under the age of three in a family raising three or more young children, if the other parent (other legal representative of the child) is not a member labor relations, at the initiative of the employer is not allowed (with the exception of dismissal on the grounds provided for in paragraphs 1, 5–8, 10 or 11 of the first part of Article 81 or paragraph 2 of Article 336 of this Code)”.

According to Article 373 of the Labor Code of the Russian Federation, when deciding on the possible termination of an employment contract in accordance with paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation with an employee who is a member of a trade union, the employer sends a draft order to the elected body of the relevant primary trade union organization, as well as copies of documents that are basis for the said decision.

The elected body of the primary trade union organization, within seven working days from the date of receipt of the draft order and copies of documents, considers this issue and sends its reasoned opinion to the employer in writing. This opinion is usually drawn up in the form of minutes of the meeting of the elected body of the primary trade union organization.

An opinion not submitted within seven days is not taken into account by the employer.

If the elected body of the primary trade union organization expressed disagreement with the alleged decision of the employer, then it shall, within three working days, hold additional consultations with the employer or his representative, the results of which are drawn up in a protocol. If there is no general agreement on the results of consultations, the employer, after ten working days from the date of sending the draft order and copies of documents to the elected body of the primary trade union organization, has the right to make a final decision, which can be appealed to the relevant State Labor Inspectorate.

The State Labor Inspectorate, within ten days from the date of receipt of the complaint (application), considers the issue of dismissal and, if it is recognized as illegal, issues an obligatory order to the employer to reinstate the employee at work with payment for forced absenteeism.

Compliance with the above procedure does not deprive the employee or the elected body of the primary trade union organization representing his interests of the right to appeal the dismissal directly to the court, and the employer does not deprive the employer of the right to appeal to the court the order of the State Labor Inspectorate.

Please note: the article also establishes the terms of dismissal: the employer has the right to terminate the employment contract no later than one month from the date of receipt of the reasoned opinion of the elected body of the primary trade union organization (we will discuss the difficulties of meeting this deadline below). In the specified period, periods of temporary disability of the employee, his stay on vacation and other periods of absence of the employee when he retains his place of work (position) are not counted.

The collective agreement may establish a different procedure for the mandatory participation of the elected body of the primary trade union organization in the consideration of issues related to the termination of the employment contract at the initiative of the employer. Therefore, before involving the trade union body in the procedures, carefully read the provisions of the collective agreement.

Article 374 of the Labor Code of the Russian Federation defines Additional features dismissals of employees who are members of elected collegial bodies trade union organizations and not released from the main work.

If the employee refuses to receive the proposal, read it, put his signature, it is recommended to draw up an appropriate act, which is certified by the signatures of the originator and the employees who were present at the refusal, and send the proposal to the employee’s home address by letter with notification and description of the attachment. The act is registered in the manner prescribed by the employer in the appropriate registration log.

If the employee refuses to receive the notification, read it, put his signature, it is recommended to draw up an appropriate act, which is certified by the signatures of the compiler and the employees who were present at the refusal, and send the notification to the employee's home address by letter with the notification and description of the attachment. The act is registered in the manner prescribed by the employer in the appropriate registration log.

If the employee refuses to familiarize himself with the order (instruction) to terminate the employment contract, it is also advisable to draw up an act on the employee’s refusal to familiarize himself with the order (instruction), which is signed by the compiler and the employees who were present at the refusal (the law in this case does not require the drawing up of an act, but in the event of a court dispute, the act may be useful as additional evidence of the correctness of the employer). The act is registered in the manner prescribed by the employer in the appropriate registration log.

If the employee refuses to receive a work book, it is advisable to draw up an appropriate act. The act is signed by the compiler and employees who were present at the refusal. The law does not require the drawing up of such an act, but it can be useful as evidence of the innocence of the employer if a dispute arises upon dismissal and the case goes to court. The act is registered in the manner prescribed by the employer in the appropriate registration log.

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