Nowadays, you need to be legally savvy in a variety of issues, especially when it comes to labor relations. What is important to know if you decide to quit or are laid off? About this with Head of the legal department of the Center for Social and Labor Rights Sergei Saurin.
If the employer refuses to sign the resignation letter
The manager has no right to interfere. You can decide to quit at any time, and you do not need to coordinate your resignation with your employer. The only limitation is that according to Article 80 of the Labor Code of the Russian Federation, you are required to notify your management about leaving in writing no later than two weeks in advance. A letter of resignation is just a form of warning, and it is important for you to have confirmation that the employer has received it. To do this, you can ask the person authorized to accept documents to sign for receipt of your application on a copy of this application (the copy remains with you). If for some reason they refuse to sign for you to receive the application, you can send the employer a telegram with acknowledgment of receipt - this will also be a notice of resignation in the proper form.
After the two-week warning period has expired, you will have the right not to go to work and demand registration of dismissal. By agreement with your employer, you can terminate employment contract and before the expiration of the two-week period.
How to use the remaining vacation upon dismissal
The current Labor Code in Article 127 provides for two options for using leave upon dismissal:
If you are "asked"
Dismissal by at will, according to the current Labor Code, does not imply the payment of any compensation to the employee. However, in a situation where you generally do not mind terminating the employment contract, but do not want to write a statement of your own free will, you can offer the employer to formalize the dismissal by agreement of the parties. In essence, this is the same “conflict-free” basis for dismissal, but you can bargain here. The law does not limit your choice possible conditions termination agreements, it all depends on your negotiating capabilities. You can try to convince your employer to pay you monetary compensation in a certain amount, or ask for “compensation” in another form (for example, good recommendations).
The agreement to terminate the employment contract must be drawn up in writing in two copies. It is often presented in the form additional agreement to the terminated employment contract. From the moment it is signed by the parties, it is binding on both the employee and the employer.
You've been laid off, but you don't agree with it
In Art. 179 Labor Code The Russian Federation stipulates that employees with higher labor productivity and qualifications have a priority right to remain at work during reduction measures. All other possible criteria (including length of service) are applied only in the case of equal labor productivity and qualifications of workers.
If you have reason to believe that the employer chose you unreasonably, you should appeal your dismissal in court. Unfortunately, you won’t be able to appeal the employer’s actions before the layoff occurred (dismissal or transfer, depending on the availability of vacancies), since the notice of layoff itself does not violate your rights.
In court, you will have to prove that your productivity and qualifications were higher than those of your colleagues in your position (or that you had a preferential right according to other criteria, subject to equality of productivity and qualifications). As evidence, you can use documents, witness statements or any other evidence of your position. It is better to start preparing evidence in advance, even before the reduction occurs.
How redundancy benefits are paid
In accordance with Article 180 of the Labor Code of the Russian Federation, employees are warned by the employer personally and against signature at least two months before dismissal about upcoming dismissal due to a reduction in the number or staff of the organization's employees. During these two months, the employee continues to work and receives wages in the general manner.
After two months, immediately upon dismissal, according to Article 178 of the Labor Code of the Russian Federation, the employer is obliged to pay severance pay in the amount of average monthly earnings. This payment is considered to be the preservation of the employee’s earnings for the first month after dismissal.
If a laid-off employee does not get a job within the first month after dismissal, the employer has an obligation to maintain his average earnings for the second month after dismissal. The average salary for the second month is paid to the employee exactly in the second month (since upon dismissal it is not known when the laid-off employee will be able to get a new job). Moreover, if an employee gets a new job in the middle of the second month after dismissal, then the old employer pays him the average salary only for that part of the second month during which the employee did not work.
If an employee is registered with the employment agency within two weeks after dismissal due to layoff, and despite this was unable to get a new job within two months after dismissal, the old employer retains his average earnings for the third month after dismissal (payment rules the same as for the second month).
Article 180 of the Labor Code of the Russian Federation establishes the possibility of an employer and an employee to agree to terminate an employment contract in connection with a layoff before the expiration of a two-month warning period. In this case, the employer is obliged to pay the employee a lump sum (upon dismissal) monetary compensation in the amount of average earnings for the entire period remaining before the expiration of the two-month period, plus severance pay in the amount of average earnings for one month. In this case, the preservation of earnings for the second and third months after dismissal occurs according to the general rule.
Is it possible to contact the Employment Center with only registration in hand?
According to Article 31 of the Law of the Russian Federation “On Employment of the Population in Russian Federation“, the decision to assign unemployment benefits is made simultaneously with the decision to recognize a citizen as unemployed. In accordance with paragraph 2 of Article 3 of the Law on Employment, the decision to recognize a citizen registered for the purpose of searching for a suitable job as unemployed is made by the employment service authorities at the citizen’s place of residence.
We are talking specifically about the place of residence, and not about the place of registration (registration), therefore, if you receive a refusal, you have the right to demand that the refusal be formalized in writing and appeal it in court or to a higher authority (the employment department of the constituent entity of the Russian Federation).
Please note that registration at the place of stay and residence is only provided federal law a method of recording citizens within the Russian Federation, which is of a notification nature and reflects the fact that a citizen is at the place of stay or residence, which cannot serve as a basis for restriction or a condition for the implementation of the rights and freedoms of citizens.
Sometimes the reason for the dismissal of one or more employees of an 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 to 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 that allows optimizing staff composition and structure staffing table. However, the use of such a technique is associated with a large number of 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 define the main concepts:
- The number of employees is the number of all employees of the enterprise, in other words, this is the payroll. If we are talking about dismissing several representatives of the same profession performing similar functions, while maintaining the position on the staff list, then this is a reduction in the number of employees. An example would be the dismissal of three out of five architects.
- The staff of employees is absolutely all positions represented in the company (managerial, administrative, workers and others). Their list represents the staffing table, in accordance with which the structure of the organization’s personnel is formed.
- Reducing the number of staff may be necessary in order to exclude from the list positions that duplicate each other, or those that can be combined into one staff unit. This concept also includes measures aimed at eliminating any division.
This means that staff reduction is accompanied not just by a decrease in the number of employees with the same responsibilities, but also by the dismissal of all employees performing specific job functions. Returning to the example above, a downsizing would result in all five architects being laid off. Perhaps it is more profitable for the company not to keep these employees on staff, but to hire them from time to time to perform a separate task (outsourcing).
Legislation on dismissal due to staff reduction
The legal aspects accompanying the severance of labor relations due to changes in the structure of the staffing table are regulated by the Labor Code of the Russian Federation. A reduction in the number of employees (due to the liquidation of an organization or a change in its owner) is discussed 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 dismissing employees:
Who can be laid off?
The decision on which the reduction of 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 enjoying certain benefits.
When considering candidates for employees subject to dismissal, the manager is obliged to comply with the rule set out in Art. 179 TK. It states that staff reductions should occur at the expense of the least qualified personnel who have the most low performance labor productivity. The practical implementation of this rule is often associated with an assessment of the experience and length of service of employees. It is assumed that those who have recently worked at the enterprise represent the least value to 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 workers occupying the same position, preference will be given to the one who has higher education. His colleagues who received secondary specialized education will probably be laid off.
Categories of personnel not affected by dismissal due to staff reduction
The reduction in staff does not affect the following categories:
- Parents of children with disabled status.
- Mothers and fathers raising children on their own (single).
- Parents large families until the time youngest child will not be 14 years old.
- Citizens who are the sole breadwinners of their families.
- Workers who received professional injury or have been exposed to illness as a result of their employment with this company.
- Disabled people who suffered as a result of wars, the Chernobyl disaster or the Semipalatinsk tests.
- Employees of the company who have awards (Hero of the USSR, Knight of the Order of Glory) or the title of inventor.
- Workers who combine the performance of their work functions with training.
Dismissal due to staff reduction does not affect those employees who are members of a trade union or act as elected representatives of the work collective and take part in negotiations with the company's management.
Also, employees of the enterprise who are on sick leave, regular leave or maternity leave. True, this can be done with their written consent or upon complete liquidation of the company.
How retirees and part-time workers are laid off
The Labor Code of the Russian Federation (Article 3) contains a ban on employer discrimination based on age. Most often this applies to workers who have reached retirement age and continue to fulfill their job responsibilities. If necessary, they will also be affected by redundancy, but it is illegal to use their social status as a basis for dismissal.
Taking into account the experience and qualifications of pensioners, they, on the contrary, 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 performs almost all standard actions. The only difference is that the law does not establish whether it 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 amount remains with the employer.
Why do employers resort to layoffs?
The state allows enterprise managers to independently decide on the need to reduce staff or the number of personnel. However, in the event of controversial situations the economic justification of these measures can be verified by judicial authorities.
This condition places the obligation on the employer to inform its subordinates about why the workforce is being reduced. This information is set out in the relevant order and may be related to the following factors:
- With a low level of profitability. The lack of profit does not allow management to pay at the proper level for the work of the previous number of employees. By reducing labor costs, an organization can save some money to pay off debts or purchase a new batch of materials.
- Ineffective staff structure. If among the organizational positions there are those that duplicate each other or are not valuable for maintaining economic activity, their elimination will be justified.
- Introduction of new technologies or equipment. When production becomes more automated and does not require the same number of employees, staff reduction can significantly reduce costs and increase profitability.
What rules must an employer follow when reducing staff?
The forced dismissal procedure can significantly affect the well-being of those employees who are subject to layoffs. It is not always possible for them to find workplace with the same conditions as at this enterprise. For this reason, the state dictates to leaders certain conditions, compliance with which to a certain extent protects the interests of dismissed workers:
In the event that the company’s management “forgets” to inform the employment service about its intentions, in addition to fines, the court may oblige them to pay wages to employees for forced absences.
How staff reduction occurs: step-by-step instructions
Any head of a company or organization, when planning and implementing staff reduction measures, must know and comply with all legal norms and requirements. Ignoring or unintentionally violating one or more rules can result in serious consequences. serious consequences: fine or trial.
Based on this, the employer is interested in carrying out a phased reduction of staff (the Labor Code of the Russian Federation establishes a list of necessary documents and procedures):
In the event that an employee does not agree to the transfer and continuation of cooperation with the company, the last on the list of required documents is an order for his dismissal. The unified form T-8 is recognized as usual for this document.
How is dismissal due to staff reduction completed: compensation for vacation, severance pay
The dismissal of an employee who was informed on time and refused the offered vacancies takes place simultaneously with the payment of all necessary funds to him.
Along with the work book, the former employee is given:
- Wages accrued for the last period worked.
- Compensation payments for unused vacation(if there is one).
- Special payments in case of staff reduction (severance pay). Their amount is often equal to the average salary, but can 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 listed on the labor exchange but cannot find a job. Its size is set at the average salary, but it does not take into account the amount that has already been issued.
If an employee wishes to resign earlier than the deadline set by the employer, he must be paid the money accrued for unworked time. That is, in fact, in any case, he will be paid for the two-month period between the announcement of the reduction and the date on which this procedure is planned.
Payments to certain categories of personnel
The procedure for laying off some employees is slightly different from the one outlined above. This is due to the non-standard nature of their work functions or special circumstances:
- For those employees whose duties are considered seasonal, redundancy payments amount to an amount equal to the average salary for two weeks.
- Employees of organizations located in the Far North are paid a one-time severance pay and an average salary for three months (if they are not hired earlier).
What will be indicated in the work book
According to Art. 81 of the Labor Code, staff reduction is indicated as a basis for termination of an employment contract in the employee’s work book. It is issued on the day of dismissal along with accrued a sum of money. Upon receipt of them, the former employee of the enterprise signs several documents (personal card, work record book, insert).
The confirmation of the entry that the employment contract has been terminated is the signature of the HR department employee (who maintains work records) and the employee being dismissed, as well as the seal of the manager.
What should an employee's behavior be like when being made redundant?
When a person receives notice that he is planning to be laid off, he should take the following actions:
- Make inquiries about the list of persons who do not have the right to dismiss and find out if he is included in this category. In the event that they discover any factor that gives the right to privileges or benefits, this should be stated in a letter and submitted to the manager. The best option It is considered that the letter is drawn up in two copies. One of them is given to management with a request to put a mark of receipt on the second. This will be useful evidence in favor of the employee if the case goes to court.
- Present demands regarding an alternative place of work at this enterprise. The employee does not have to agree to the offer, but a written refusal by the employer to provide vacancies may also become grounds for canceling the decision to lay off.
- To receive additional payments, you must register with the employment service within a period of no more than two weeks after the staff reduction was made. The Labor Code of the Russian Federation specifies exactly this period. Then the employee becomes entitled to two months' benefits (average wage) if he fails to find a new job.
The most important aspect is that the employee should not write a letter of resignation himself after he becomes aware of the upcoming layoff.
Also, you should not give in to your boss’s persuasion 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, layoffs may affect a fairly wide range of companies and organizations. Doctors and teachers may not fear 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 sector.
- Librarians.
- Postal workers.
- Mosgotrans employees.
- Reduction of the 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 quit on their own initiative. Without waiting for layoffs, they will learn new relevant professions or look for applications for their talents in other countries.
Magazine"Labor disputes" compiled a rating of five risks for employer companies when dismissing workers due to staff reduction.
Customer service manager Sergei Fedorov was fired due to a reduction in the organization's workforce. He considered that his employer fired him illegally and went to court. As the main arguments, the employee referred, firstly, to the inappropriateness of dismissal, since due to the nature of its activities the company could not do without a customer service manager. This means that the dismissal is imaginary. Secondly, the employee received notice of the planned layoff by mail, which is a violation of labor laws.
In accordance with Part 2 of Art. 180 of the Labor Code of the Russian Federation, employees are warned about dismissal due to staff reduction in person and against signature, which in in this case was not fulfilled. Thirdly, the employer did not offer him all available vacancies, although the organization had temporarily vacant positions for female workers on maternity leave. For example, there was a vacant position for a quality control specialist, but it was offered to another layoff employee—a purchasing manager. According to the laid-off employee, he had a preferential right to occupy this position because he had a higher education, while the purchasing manager only had a secondary specialized education. And finally, fourthly, the employer, in violation of the requirements of the Law of the Russian Federation No. 1032-1 of April 19, 1991 “On Employment of the Population in the Russian Federation,” did not notify the employment service of the planned reduction, although it was obliged to do so. All this became the main arguments of the employee when going to court with demands for reinstatement at work, payment for forced absence time and compensation for moral damage caused by unlawful dismissal.
At first glance, the employee's arguments may seem convincing. However, let's find out whether the employer actually committed violations during dismissal that may lead to the recognition of his actions as illegal. Let's analyze each employee's argument and offer our own counterargument.
Arguments that employees most often use when challenging dismissal:
- the employer had no objective reasons to reduce staff;
- the employee was notified of dismissal by mail;
- the employee was not offered temporarily vacant positions;
- the employer did not take into account the employee’s preferential right to remain at work;
- the employer did not notify the employment service of the planned reduction.
Risk one: the argument that staff reductions are unjustified
In court, the employee argued that the employer did not need to reduce his position - a company that professionally engages in sales cannot operate without account managers. However, this argument is unlikely to help the employee challenge the dismissal. The fact is that the law does not require the employer to justify why he eliminated a particular position. The fact of reduction is important. This is confirmed by the highest courts.Supreme Court RF:
“The employer, for the purpose of effective economic activity and rational property management, independently, under his own responsibility, accepts the necessary personnel decisions“(selection, placement, dismissal of personnel)” (clause 10 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).
Constitutional Court of the Russian Federation:
“Making a decision to change the structure, staffing table, number of employees of an organization falls within the exclusive competence of the employer, who has the right to terminate an employment contract with an employee in connection with a reduction in the number or staff of employees of the organization, subject to compliance with the dismissal procedure established by the Labor Code of the Russian Federation” (definition of the Constitutional Court RF dated July 15, 2008 No. 413-О-О).
Courts of general jurisdiction also share the approach formulated by the highest judicial authorities.
Arbitrage practice
The employee filed a lawsuit demanding that the dismissal be declared illegal. In his opinion, the reduction was imaginary, since his position in the organization was needed. The court of first instance, satisfying the employee's demands, indicated that there was no staff reduction in relation to the position held by the plaintiff, and in addition, the defendant did not provide the court with evidence of the need to reduce this position. However, the cassation court recognized this conclusion as unfounded, indicating the following. The court, checking the legality and validity of the dismissal of an employee under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation, does not resolve the issue of the advisability of excluding a specific position from the staffing table, since this is within the competence of the employer, and therefore the court does not have the right to discuss the issue of the advisability of reducing staff. The fact of staff reduction was confirmed by orders general director, as well as staffing schedules.
Based on this, the higher court overturned the decision of the court of first instance and refused to satisfy the employee’s claims (decision of the Moscow City Court dated September 09, 2010 in case No. 33-28514).
Similar conclusions are contained, in particular, in the rulings of the St. Petersburg City Court dated February 15, 2010 in case No. 33-1807/2010, the Moscow City Court dated July 1, 2010 in case No. 33-18716, etc.).
Thus, the employer does not need to justify the feasibility of the reduction. In court, he only needs to confirm that the staff reduction was real. To do this, it is necessary to submit orders for staff reduction, the previous staffing table and the current one. Absence in latest version the staffing table of the position, the reduction of which the employee is challenging, will be adequate evidence for the court.
Additional argument in favor of the company: employees do not have the right to appeal the employer’s decision to reduce headcount or staff
The workers appealed to the court to declare the order to reduce staff illegal. In their opinion, the company's board violated the established procedure for making such a decision. However, the court refused to satisfy the workers' demands. He indicated that a person working under an employment contract with an organization is not given the right to appeal decisions of collegial bodies legal entity, since only members of the board are vested with this right. The court emphasized that employees do not have the right to appeal the employer’s decision to carry out measures to reduce numbers or staff. He noted that reducing the number or staff of employees is an unconditional right of the employer, in the implementation of which he must fulfill the procedure defined by the Labor Code of the Russian Federation. In this case, employees can only check the facts of notification of their upcoming dismissal, offers of other vacant positions, but not the procedure for the employer to make a decision on layoffs (decision of the Sverdlovsk Regional Court dated 02.06.2009 in case No. 33-5558/2009).
Risk two: the employee was not notified of the upcoming staff reduction
The Labor Code of the Russian Federation indeed requires that the employee be warned about the upcoming reduction in staff personally and against signature at least 2 months before the date of dismissal (Part 2 of Article 180 of the Labor Code of the Russian Federation). For this purpose, as a rule, a notice of upcoming dismissal is drawn up. If the employee refuses to familiarize himself with such a document in writing, then a report is drawn up about this, and the notification itself is read aloud (this is also indicated in the report). Ideally, you should strive to notify workers in person. Courts are more accepting this method than using postal services. At the same time, nowhere in the law does it say that an employer cannot send notice of an upcoming dismissal by mail. Therefore, in the event of vacation or illness, notice can be sent to the employee at his home address by mail or courier. The main thing is that the employer has notification of delivery of the letter. Otherwise, it will be difficult to prove that the employee was notified.According to clause 2 of the Rules for the provision of postal services (approved by Decree of the Government of the Russian Federation of April 15, 2005 No. 221), a postal item with a receipt notification is such an item, when submitted, the sender instructs the postal operator to inform him or the person specified by him when and to whom the postal item was delivered. Therefore, when delivering a postal item, the employee signs for its receipt. If the postal item contained a list of contents and a notification of delivery, then the employer can say that the employee was warned about the upcoming dismissal upon signature.
So, the employer can notify the employee of the upcoming layoff by mail, and this method of notification will comply with the law if two conditions are met: the employer has a document on which the employee has signed for receipt of the notification and notice of dismissal at least 2 months in advance. Please note that the calculation of the 2-month period does not begin from the moment the notice is sent, but from the moment the employee receives it.
If these conditions are met, then, most likely, the court will consider the dismissal procedure to have been followed.
Arbitrage practice
The company carried out organizational and staffing measures, as a result of which the position of deputy director for science was reduced. The employee who held this position did not agree with the dismissal and went to court with a demand to declare the dismissal illegal. In his opinion, there was no actual reduction, and the dismissal procedure was carried out in violation. In particular, the employer did not notify him of the upcoming layoff 2 months before his dismissal. However, the court sided with the company. He indicated that on February 18, 2010, a notice of upcoming dismissal was sent to the employee. On 04/16/2010 the employee was dismissed from 04/19/2010 under clause 2 of part 1 of art. 81 Labor Code of the Russian Federation. Referring to the employee’s explanations, the court noted that the notification was received by his daughter, who contacted him by phone on February 18, 2010 and informed him of the notification received, and also read out the list of proposed positions. This conclusion was also confirmed by the postal envelope, notification and duplicate notification received by the employee after his return from vacation on 03/26/2010, in which he confirmed the fact of familiarization with the notification and the list of vacant positions on 02/18/2010. Having assessed the evidence presented in its entirety, the court came to the conclusion that the plaintiff’s arguments regarding the employer’s violation of the provisions labor legislation the warning period about the upcoming reduction is unfounded. In this regard, the dismissal was recognized as legal (ruling of the Moscow Regional Court dated September 16, 2010 in case No. 33-18024).
It should be borne in mind that in case conflict dismissal, the employee may not pick up the document at the post office. Therefore, if the employer has the resources, it makes sense to play it safe and deliver the notice of staff reduction to the employee personally (for example, send a courier or HR employee to his home). The main thing is that the laid-off employee signs for receipt of the notification. When the employee returns to work, the notification must be handed over to him again. At the same time, it is also important to keep all documents confirming the notification was sent to him.
When can an employer return a reduced position to the staffing table?
The legislation does not establish a time frame for returning an employee’s position to the staffing table. Since the employer determines the advisability of reducing staff, he also decides when he should expand the staff again. For example, if a reduction in staff was caused by financial difficulties, then after the economic situation normalizes, it will be legal to return the reduced position. However, the rapid return of such a position may raise suspicions that the reduction was in fact imaginary. And this automatically entails recognition of the dismissal as illegal. Therefore, if there is a need to immediately return a reduced unit, it is better to play it safe and introduce a position under a different name.
Risk three: the employee was not offered all vacant positions
Before dismissing an employee due to a reduction in numbers or staff, the employer will have to prove the impossibility of his employment within the company. And hiding the availability of vacancies is a difficult task. An employee, one way or another, learns about vacant positions: in a conversation with a colleague, from information on the corporate website, or through the court, he requests the company’s staffing table. Therefore, in order to avoid getting into trouble, the employer should better prepare and determine in advance a list of vacant positions that could be offered to the employee. At the same time, compiling such a list can be difficult. So, part 3 of Art. 81 of the Labor Code of the Russian Federation speaks of only two criteria for suitable work:- compliance with the employee’s qualifications (regardless of whether it is a lower-ranking or lower-paid position);
- no contraindications for health reasons for the employee.
In such a situation, the employer can be advised to use the following argument in court: the positions of employees on maternity leave were not offered to the employee, since they are not considered vacant, but are only temporarily available. This conclusion is confirmed by judicial practice.
Arbitrage practice
The employee was fired due to staff reduction. Considering the employer’s actions unlawful, she went to court with a demand to recognize the dismissal under clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation is illegal. In her opinion, upon dismissal, she was not offered all positions; in particular, there were temporary vacancies for workers on maternity leave. However, the court indicated that the employer’s offer to an employee subject to dismissal of positions temporarily vacant due to long-term leave of employees, including in connection with child care, is not provided for by law. The court noted that these positions are not vacant in the sense of the provisions of Part 3 of Art. 81 of the Labor Code of the Russian Federation, since work in these positions is temporary (determination of the St. Petersburg City Court dated August 30, 2010 No. 33-11908).
At the same time, we note that the issue of offering temporary positions is not clear-cut. Some courts believe that such an obligation is still assigned to the employer. So, for example, the Moscow City Court in one of its decisions indicated that the Labor Code of the Russian Federation does not contain clarifications as to whether the proposed job should be permanent or temporary, while the employer is obliged to offer all available vacancies (determination of the Moscow City Court dated July 1, 2010 to case No. 33-19668/2010). However most of judicial practice on this issue is still in favor of the employer (see, for example: Review of cassation and supervisory practice in civil cases for 6 months of 2005 of the Perm Regional Court; rulings of the Voronezh Regional Court dated June 26, 2007 in case No. 33-1629; Moscow City Court dated July 22, 2010 in case No. 33-20380, dated August 19, 2010 in case No. 33-26128, dated September 16, 2010 in case No. 33-29046, etc.).
Thus, in court, the company will most likely be able to refute the employee’s argument that the dismissal procedure was violated, since he was not offered temporarily free vacancies.
Dismissal may be considered illegal if vacancies at the company's head office were not offered
The employee appealed to the court with a demand to declare the dismissal due to a reduction in staff illegal. She indicated that when she left, she was not offered all the vacancies available in the company. The court agreed with this argument. He noted that when carrying out the procedure for dismissing employees, by virtue of the law, the employer is obliged to provide vacant positions in the same organization, including all its branches and structural units located in the area. At the same time, the employee worked at the Bank of Russia, which, together with its structural divisions amounts to unified system. The court noted that only the Bank of Russia has the status of a legal entity, whose structure includes institutions throughout Russia, of which six are located only in St. Petersburg (where the employee worked). In this regard, the case was sent for a new consideration (decision of the Supreme Court of the Russian Federation dated June 25, 2009 No. 78-B09-12). Correctly compiling a list of vacant positions will help the employer avoid reinstatement of the employee. Offering another job is perhaps the most important stage dismissal of an employee due to staff reduction. To avoid mistakes, it is important to correctly draw up a list of positions for which an employee can apply. Let us remind you that the employer must offer not just all available vacancies, but only those that the employee can fill, taking into account his state of health and qualifications. At the same time, as the Supreme Court of the Russian Federation noted, it is necessary to take into account the real ability of the employee to perform the work offered to him, taking into account his education, qualifications, and work experience (clause 29 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2). The employer will be helped with this job descriptions for each position. They can be presented to the court to prove that the employee did not meet the requirements.
Risk four: upon dismissal, the employee’s preferential right to remain at work was not taken into account
Employees dismissed due to staff reduction often refer in court to their preferential right to remain at work. Indeed, by virtue of the law, before starting the layoff procedure, the employer must find out whether certain employees have a preferential right to remain at work. In accordance with Art. 179 of the Labor Code of the Russian Federation, the employer must give preference to an employee with higher labor productivity and qualifications. In the case of equal qualifications, persons who have two or more dependents, who support disabled family members, etc. must remain at work. Here you should remember several rules. First of all, the preemptive right must be taken into account only in relation to identical positions, that is, when there is a reduction not of a specific position, but of several staffing units. For example, when out of 8 purchasing managers they decided to leave only 5. In our case, the position subject to reduction is occupied by only one employee - the customer service manager. Therefore, the employer was not required to compare the preferential right to remain in the job of a purchasing manager with the position of an account manager, since they have completely different responsibilities. This conclusion has also been confirmed in judicial practice.Arbitrage practice
The employee was fired due to staff reduction. Considering the dismissal illegal, she went to court. In her opinion, the procedure for terminating an employment contract due to staff reduction was violated. The court of first instance agreed with the employee’s argument and indicated that the employer did not take into account her preferential right to remain at work. However, the higher court found this conclusion untenable. He noted that, by virtue of the provisions of Art. 179 of the Labor Code of the Russian Federation, when the number or staff of employees is reduced, the priority right to remain at work is given to employees with higher labor productivity and qualifications. Within the meaning of this article, it should be applied when there is a question of leaving one of several employees performing equal job duties at work. In this regard, the employee was denied reinstatement at work (ruling of the St. Petersburg City Court dated December 6, 2010 No. 16436).
One more point should be noted. In our case, the employee was indignant that the vacant position of a quality control specialist was offered not to him, but to another employee who had vocational education. In this case, the employer had the legal right to choose who to offer the vacant position first. Article 179 of the Labor Code of the Russian Federation talks about taking into account the preferential right to remain at work, but not about offering vacant positions. If the purchasing manager refused to move into the position, the employer would then have to offer it to the account manager. This follows from Part 3 of Art. 81 of the Labor Code of the Russian Federation, according to which the employer is obliged to offer the laid-off employee all available vacant positions.
Arbitrage practice
Due to job reduction, the employee was dismissed from the organization. Considering the employer's actions illegal, he went to court. In his opinion, the employer did not take into account his preferential right to remain unemployed and did not offer the vacancy available in the company. However, the court did not agree with this conclusion. He noted that the company had several employees whose positions were subject to reduction. The court noted that in such circumstances, when several laid-off employees apply for a vacant position, the right to select a specific employee to fill the existing vacant positions belongs to the employer. In this regard, the dismissal was recognized as legal (ruling of the Moscow City Court dated October 22, 2010 in case No. 33-30909).
Thus, when there are more laid-off workers than there are vacant positions in the company, the right to choose who to offer it to belongs to the employer. Since the purchasing manager agreed to fill the vacant position, there were no violations by the employer.
Three rules for painlessly dismissing an employee due to staff reduction
- The employer can use additional criteria to assess labor productivity. When staffing is reduced, the priority right to remain at work is given to employees with higher labor productivity and qualifications (Article 179 of the Labor Code of the Russian Federation). But the law does not stipulate exactly how to determine whose productivity and qualifications are higher. For these purposes, you can take into account, in particular, the period that the employee has worked in his specialty, his education and the number of incentives. If these indicators are the same for all candidates for dismissal, you must be guided by part 2 of this article, which contains a list of categories of citizens who have a preferential right to retain their jobs.
- Dismissal of a pregnant employee is illegal, even if the employer did not know that she was expecting a child. Article 261 of the Labor Code of the Russian Federation prohibits the termination of an employment contract at the initiative of the employer with pregnant women (except in cases of liquidation of the company). In practice, it happens that an employee who has been informed of an upcoming layoff responds by announcing that she is pregnant. If such an employee is fired and the fact of pregnancy is confirmed, the court will reinstate her at work. Please note that similar situations may arise after the dismissal of an employee. For example, in the early stages of pregnancy, she herself may not know that she is expecting a child. Nevertheless, judicial practice shows that in such situations the legality of dismissal does not depend on whether the employer or employee knew about the pregnancy. In this situation, the employer can only be advised not to contact a legally savvy employee.
- When a staff member is laid off, there is a risk of fraud with the work record book. A difficult situation can arise if an employee who has access to the work record books (for example, who is responsible for their storage) is dismissed. He can resign by taking his work book without signing for its receipt. Subsequently, he can make financial claims to his former employer, stating that he was not given a work book, and without it he cannot get a job. In this case, it is better for the employer to take preventive measures and create a duplicate of the lost work book. This will allow him to send the employee a notice of the need to appear for a work book. From the date of sending such notification, the employer is released from liability for the delay in issuing the work book.
Risk five: the employer did not notify the employment service about the employee’s dismissal
By virtue of clause 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1, the employer is obliged to notify the employment service at least 2 months before the upcoming dismissal. In our example, the employee referred to the fact that the employer did not notify the employment service about the upcoming staff reduction. Since the employer did not do this, he thereby violated employment legislation. However, does this entail the illegality of dismissing an employee due to staff reduction? It should be noted right away that this issue is very difficult. Some courts are of the view that such a violation is not grounds for reinstatement of the employee.Arbitrage practice
The employee was dismissed from the organization due to a reduction in the position she occupied. Considering the dismissal illegal, she went to court. In her opinion, the employer committed numerous violations, including failing to notify the employment service 2 months in advance. However, the court did not find any violations leading to illegal dismissal. The court stated that the employer had the right to reduce her position. Moreover, the fact that the employer did not send information about the dismissed employee to the employment service cannot serve as a basis for her reinstatement at work, since the Labor Code 6s of the Russian Federation does not contain such an obligation (decision of the Moscow City Court dated December 8, 2010 in case No. 33- 38126).
Thus, the employer can declare in court that, despite the violation he committed, this does not affect the lawfulness of the dismissal. In addition, some courts examine how the violation affected the employee’s rights. After all, the point of notifying the employment service about the release of an employee is so that this body can quickly find a new job for the employee. If the employment service is unable to do this precisely because the employer did not inform about the employee’s dismissal in a timely manner, then we can talk about a violation of the employee’s rights. However, this should be a separate subject of proof and the employee must prove it.
Arbitrage practice
In connection with the employer’s decision to improve the organization of work and the rational use of personnel in functional departments in the company, the position of head of the logistics group was reduced. The employee who held this position considered such actions of the employer to be illegal and went to court with a demand to reinstate him at work. In his opinion, dismissal under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation is unlawful, since the procedures for terminating an employment contract were violated. In particular, the employment service was not notified of the upcoming dismissal. The first and second instances refused to satisfy the employee’s demands. The employee filed a supervisory complaint. However, the supervisory authority confirmed the legality of the dismissal. The court noted that the fact that the employer’s timely notification of the employment service about the upcoming reduction in staff at the enterprise and the possible termination of employment contracts cannot serve as a basis for canceling the appealed court decisions. The employee did not provide evidence of how this circumstance could or did result in a violation of his right to employment with the help of the employment service (decision of the Moscow City Court dated December 23, 2011 in case No. 4g/7-11008/11).
However, some courts approach this issue formally and check only the employer’s documented compliance with the procedure for dismissing the employee, and not how this affected the employee’s rights. In practice, there is a position according to which failure to notify the employment service, coupled with failure to notify the trade union, entails the illegality of dismissal.
Arbitrage practice
First Deputy Head of Administration municipality was fired due to staff reduction. Disagreeing with this decision, he went to court. In court, the plaintiff explained that in fact there was no reduction, since functional responsibilities remained and were redistributed among other employees. In addition, the dismissal procedure was violated, since the trade union committee and the employment service were not notified of his dismissal 2 months in advance. The court agreed with the plaintiff's arguments. He noted that the reduction of the position of the first deputy head of the administration of the Dzerzhinsky district of Perm was carried out in accordance with the procedure established by local regulations city administration. However, the procedure for dismissing the employee was violated, since neither the trade union body nor the employment service body were notified in writing of his upcoming dismissal due to a reduction in his position 2 months in advance. In this regard, the dismissal was declared illegal (ruling of the Perm Regional Court dated 08/01/2011 in case No. 33-7697).
It is worth noting that previously the same court took the view that these violations themselves cannot be grounds for reinstating an employee at work. It is necessary to provide evidence that this affected the employee’s rights (see Review of cassation and supervisory practice in civil cases for 2006 of the Perm Regional Court).
Thus, failure to fulfill the employer’s obligation to notify the employment service significantly reduces the employer’s chances of winning a labor dispute. However, if the company manages to convince the judge that all other elements of the procedure were followed, and this violation did not in any way affect the employee’s rights, there is a possibility that the court will refuse to reinstate the employee. The employer can also argue its position by the fact that violation of this obligation does not entail reinstatement at work, since it is not provided for by the Labor Code of the Russian Federation.
Travel and hospitality expenses: documentation taking into account the CCP reform, taxes, compensation. How to take into account
The crisis that arose in connection with the political situation in the country has led many employers to the need to reduce personnel costs. And, as a consequence, to the reduction of workers themselves. In this situation, questions invariably arise related to the preparation of documents, due payments and compliance with the requirements established by law.
How should the layoff procedure take place, and what are the rights of the laid-off 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 rationale for the decision is not, according to the law, the responsibility of the employer.
But there is an obligation to comply with the formal procedure (notes 82, 179, 180 and 373 of the Labor Code of the Russian Federation).
In what cases is a reduction illegal?
- Lack of real grounds for reduction (approx. “imaginary reduction”).
- Dismissal carried out without following the required procedure or when the procedure is not followed correctly.
Who can't be laid off?
During the reduction procedure individual categories employees have a preemptive right to be dismissed last (Article 179 of the Labor Code).
Employees who are required by law to remain at work when staffing is reduced include:
- Employees with 2 (or more) dependents (example: family members supported by the employee).
- Employees whose families have no other sources of income.
- Employees who, while working for a specific employer, received a work injury or occupational disease.
- Disabled people of the Second World War.
- Employees who carry out advanced training at the direction of the employer in conjunction with their work.
- Employees who are on vacation - regardless of the type of vacation (the employment contract can only be terminated on the 1st day the employee returns to work).
- Future mothers.
- Mothers who have babies under 3 years old.
- Employees who are temporarily disabled (the employment contract can be terminated only on the 1st day of the employee’s return to work).
- Single mothers (disabled child under 18 years old or a child under 14 years old).
- Employees raising children without a mother (a disabled child under 18 years of age or a child under 14 years of age) are guardians.
- Employees under the age of 18 (in the absence of consent from the guardianship authorities).
In a situation where an employer fires expectant mother or a single mother, not knowing about these facts, the dismissal is declared illegal through the court.
Reasons and grounds for reducing the salary of an employee of an organization
Among the main reasons for possible staff reductions allocate liquidation 
company, a change in its type of activity, financial difficulties, etc.
To date the most pressing reason – financial difficulties (reason – political situation in the world, economic difficulties). Downsizing is becoming the only option for many companies to “stay afloat” and save themselves from bankruptcy.
The Labor Code of the Russian Federation clearly defines the grounds for layoffs:
- Liquidation of the enterprise.
- Termination of activities of an individual entrepreneur company (organization).
- Reduction of number/staff of employees. This clause is valid only if the employee’s position is liquidated.
- Availability 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 must indicate the real grounds for the reduction, according to which it is carried out.
How to properly lay off an employee?
The entire staff reduction 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 staffing table 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 staff reduction and setting deadlines for each stage of the procedure.
Notification
Preparing its form with complete information about the reduction of positions, familiarizing employees subject to dismissal 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.
Vacancies
The employer offers employees subject to redundancy 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 vacancy in another area (except outside the borders of a locality/location) only in a situation where this is provided for in the employment contract.
It is worth noting that the dismissal of an employee due to staff reduction is permissible only if the transfer of this employee to another job available to the employer (and only with the written consent of the employee) 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 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 must be reinstated in his previous 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 corresponding position to the employment center. In case of mass layoffs – 3 months (at least).
This notification to the central employment center must contain all the necessary information about the employees being laid off, including the terms of payment for their labor (profession and specialty, position held, qualification requirements, etc.).
Note: failure to notify the Central Labor Office about the layoff of an employee is illegal, as is the absence of a mark on the notice received by the Central Labor Office (that is, the notification was sent to the Central Labor Office, but the employer does not have a mark about this).
Trade union
A message about future staff reductions is sent to the elected body of the trade union organization 2 months before the scheduled date of termination of contracts. At mass dismissal- within 3 months.
Dismissal
The issuance of the corresponding order must be carried out after the expiration of the warning period about future layoffs, with the subsequent execution of all necessary documents and familiarization with them to the employee against his signature and exclusively within the time limits established by law.
After which the employee is issued a work book, all other Required documents, and a full payment is made (in a timely manner).
Severance pay
Payment of compensation is carried out by the employer after termination of the contract, also strictly within the time limits established by law.
Samples and forms of notifications or warnings
According to Art. 180 Labor Code of the Russian Federation , notification of the employee about the upcoming layoff is carried out by transferring the relevant document with a copy of the order attached in person or by mail 2 months before the immediate dismissal and with the obligatory offer of other vacancies for the entire period until the dismissal.
Sample notification:
LLC "Petrov and K"
Forwarding driver Ivanov A.V.
Date of_____
NOTIFICATION.
Dear ________ (full name of the employee), We inform you that on "__"__________ _____ (date) a decision was made to reduce the number of employees of our company due to ______________ (reason for reduction) Order No. ____ dated "__"_______ (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 "__"_______ _____ 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 in the following positions:
____________ (position) _______rub. (salary)
____________ (position) _______rub. (salary)
If you do not agree to the transfer, you will be fired on "__"_______ _____ 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 offers of employment in the order of transfer to other positions and received the second copy.
________ (employee signature) "___"________ ____ year (date)
_____________________ (employee’s opinion on transfer to another position)
What compensation, benefits and benefits can former employees of the company expect?
The benefit payment schedule and its amounts are regulated Chapter 27 of the Labor Code of the Russian Federation , which indicates the guarantees and compensation due to employees in case of reduction, as well as categories of citizens who have a pre-emptive right to remain at work when the number of employees is reduced.
Day of official dismissal – This is the employee’s last working day. The employer, regardless of the reason for the layoff, 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 actually worked, including the day of layoff.
How much should they pay upon layoff, what compensation should an employee expect upon layoff?
According to the current Labor Code of the Russian Federation, upon redundancy, an employee has the right to:
- Severance pay. Size – average monthly earnings. 2-week salary – for an employee engaged in seasonal work.
- Maintaining average monthly earnings until the employee gets a new job (limited for a certain period).
- Other payments and compensations in accordance with the employment contract.
How many months or salaries are redundancy benefits paid?
Retention of the employee's average monthly salary until employment 
limited for a period of 2 months (if special conditions– up to 3-6 months).
Payment procedure:
- Benefit for 1st month: payment is made together with the settlement directly upon dismissal. That is, severance pay “in advance” for the 1st month.
- Benefit for 2nd month: payment is made after the full end of the 2nd month after the employee provides a work book without marks of employment for the past period. When an employee is hired, for example, in the middle of the 2nd month, the payment is made according to the period during which the employee was not employed.
- Benefit for the 3rd month: payment is made exclusively in a situation where the employee has not found a job within 3 months after dismissal, provided that he applied to the central employment center (approx. at the place of registration) within 2 weeks after dismissal and was registered in this central employment center. In this case, the Employment Center issues the employee a corresponding certificate, which is presented to the employer to receive benefits for the 3rd month.
- 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 carried out (starting from the 4th month) by the Central Employment Service.
If you were made redundant, you didn’t pay your full salary, sick leave or vacation pay – what should you do?
All payments (with the exception of benefits that are paid after dismissal) must be made on the day of dismissal and the employee leaves the company. 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 unpaid wages (provided that they were due), and compensation for...
- Unused vacation.
- Unpaid sick leave.
- Moral injury.
And the employee has the right to demand through the court...
- Compensation for legal expenses.
- Interest for late payment.
- Compensation for lost earnings due to a delay in the work book, due to an incorrect entry in it of the reason for dismissal, due to illegal dismissal/transfer.
You can also contact the prosecutor's office with a statement (simultaneously with the application to the court). If the frightened employer still pays the salary (and other required compensation), then you can simply abandon the claim. And the duty on labor disputes falls on the employer.
The limitation period for such statements (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 calculated according to the official salary. That is, count on average monthly earnings A severance pay of 30 thousand rubles makes no sense if your “white” salary is 7,000 rubles, and the rest is paid “in an envelope.”
What to ask your employer when making you redundant - useful tips
The procedure for issuing documents to a dismissed employee must be followed, as well as the layoff procedure - strictly and clearly, regardless of the position and reason for dismissal. Documentation procedure statutory, also concerns the correct execution of an employee’s personal card, as well as maintaining accounting logs.
What documents is an employee entitled to issue? (the list includes those documents that the employee may need in the future)?
- A work record book (with its proper execution) – even if it is issued at the expense of the employer.
- Employment contract (Article 67 of the Labor Code of the Russian Federation) + all copies of additional agreements to it.
- Student agreement (Article 200 of the Labor Code of the Russian Federation).
- Pension certificate.
- Medical book.
- Document on education (with a corresponding agreement based on this document).
- Certificate of taxes paid.
- Certificate of accrued/paid insurance premiums.
- Certificate about periods of temporary incapacity for work.
- Certificate of income for submission to the employment service.
- Copies of orders (Article 62, 84.1 of the Labor Code of the Russian Federation) on hiring, dismissal from work, transfer to another job and other orders (on additional work, work on weekends, certification, etc.). Available upon employee request. A copy of the dismissal order is issued on the day of dismissal on mandatory(Article 84.1 of the Labor Code of the Russian Federation).
- Certificate of period of employment with the employer.
- Pay slips (Article 136 of the Labor Code of the Russian Federation).
- A document on additional insurance contributions for the funded part of the pension + on employer contributions in favor of the insured persons (if they are paid). Issued along with the pay slip (Article 9 of Federal Law-56 dated 30/04/08).
- Certificate 2-NDFL (Article 230 of the Tax Code of the Russian Federation). Available upon employee request.
- Certificate of average earnings for the last 3 months (clause 2 of article 3 of law No. 1032-1 of 04/19/91). You will need it at the employment service.
- A certificate of the amount of earnings for the 2 years that preceded the year of termination of work or the year of applying for this certificate (Articles 4.1 and 4.3 of Federal Law-255 dated 12/29/06). It will be needed to calculate temporary disability benefits, maternity leave, child care leave, etc.
- Personalized accounting documents, personal information, as well as information about length of service (labor, insurance). Issued upon application by an employee to establish a pension.
- Characteristic.
Payments upon layoffstates are called upon to financially support a dismissed employee during the period of his employment. It is not very easy to independently figure out what exactly is owed to the employee in such a situation, what the amount of payments is, and also in what time frame they are provided. We will discuss these issues in more detail in this article.
What payments are provided upon dismissal due to staff reduction?
In today's unstable economic situation, there are often cases when employers are forced to reduce staff. This could be 1-2 employees or tens, hundreds of people (for example, during the liquidation of an organization). The procedure and procedure for calculating payments are the same, regardless of the number of employees who were laid off. The issues of providing guarantees and compensation to citizens who have been laid off at work are regulated by Art. 180 part 3 of the Labor Code of the Russian Federation of December 30, 2001 N 197-FZ.
First of all, it is necessary to note the payments that are due to workers upon dismissal in the general order; no one exempts the employer from these payments. These include:
- salary not yet received for the last month of work;
- compensation for vacation that the employee did not use for any reason.
IMPORTANT! About the upcoming reduction in the workforce of workers should employer (an order is issued in writing for the enterprise, and all employees are introduced to it against signature) at least 2 months before dismissal. It is assumed that during this period of time the employee who has been laid off will be able to find a new job.
There are also compensation payments (regulated by Article 178 Part 3 of the Labor Code of the Russian Federation), which should help a citizen laid off due to redundancy to provide for himself while he is looking for new job. This:
- severance pay (calculated by the worker’s average earnings);
- payment in the amount of the average salary for the period while the citizen is not employed, but no more than 2 months from the date of his layoff.
Terms of payments when laying off an employee
Let's consider in order when payments are made during layoffs. On the day of actual termination of the contract with the employee, wages and compensation for vacation that is not used are calculated based on the total amount. The payment procedure here remains the same as in a normal calculation upon dismissal of an employee.
In addition, on the day of layoff, severance pay is paid, since this benefit is guaranteed and does not depend on whether the dismissed employee is employed by another employer or not.
After 1 month from the date of dismissal of the employee, no payments are made. After two months have passed from the date of dismissal of the worker, if he has not found a job, upon his written application, the employer makes a payment in the amount of the average salary of the dismissed person. When paying such compensation, compensation already paid (severance pay) is taken into account.
Payment of severance pay in case of staff reduction
As stated above, severance pay is calculated from the worker’s salary (the average value is taken). It cannot be less than the average monthly salary. A collective or, for example, a regular employment contract with an employee may provide for a different amount - in the direction of increasing severance pay. Then the laid-off employee will receive exactly this benefit.
Important: payment of severance pay does not relieve the employer from paying bonuses and other incentive payments due to the employee, if they were provided for in the contract.
You should keep in mind some special cases when redundancy payments are calculated differently or are not paid at all. So, when the payment is calculated when laying off a worker who worked in seasonal work, the average salary is taken for a period of 2 weeks, not 2 months (Article 296, Part 4 of the Labor Code of the Russian Federation). Workers who have entered into a fixed-term employment contract for no more than 2 months do not receive severance pay (Article 292, Part 4 of the Labor Code of the Russian Federation). Part-time employees who have been laid off due to staff reduction (Article 287, Part 4 of the Labor Code of the Russian Federation) have the right to receive severance pay on an equal basis with others, but are deprived of benefits in the amount of the average salary for the period of employment with another employer (while maintaining their main place of work ).
The employer and employee can agree on more early layoffs than 2 months. In this case, in addition to the main compensation payments, additional payments are made in relation to an employee who has been laid off. Additional compensation is calculated in proportion to the time that the employee did not work before the generally assigned deadline, also based on the average salary. Other required benefits (severance and for the period of placement with another employer) are also paid.
Payment of average earnings for the period of employment with a new employer
Situations often arise when, 2 months after being laid off from a previous job, a worker has not found a new employer. In this case, as stated earlier, he is entitled to a benefit in the amount of the average salary for the period of job search (but not more than 2 months), this guarantee is provided by Art. 178 part 3 TKRF.
However, it happens that a new job was found in the middle of the month, how to calculate the payment? In this case, the redundancy payment is calculated in proportion to the time spent searching. That is, if an employee was employed by a new employer on the 7th, then the average payment will be calculated for the 6 days of the month during which he was still looking for work.
There is an exception, and the average monthly payment (by decision of the employment service) can be extended for another 1 month (i.e. to the 3rd) if the conditions are met:
- the redundant employee was registered with the employment authorities within 2 weeks from the date of dismissal;
- within 3 months the employment authorities did not find him a job.
So, we have looked at what payments are due when an employee is laid off, be it a reduction in the number of employees or staff, or the liquidation of an enterprise. The problem of layoffs at work will not be so acute for you if everything due payments you will receive in full.
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