Can an employer lay off? Staff reduction: detailed instructions for use. When should you start looking for a new job?

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

Legal aspects accompanying the breakup labor relations due to changes in the structure of the staffing table, it is 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 lowest labor productivity indicators. 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, the result of the qualification exam, his education and the level of performance for the previous period are also of great importance. This means that when comparing two employees occupying the same position, preference will be given to the one who has a 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 of large families until youngest child will not be 14 years old.
Citizens who are the sole breadwinners of their families.
Employees who have suffered an occupational injury or illness as a result of their work at that 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 employees who have reached retirement age and continue to perform their job duties. 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 their intentions, in addition to fines, the court may oblige them to pay wages 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 lead to quite serious consequences: a fine or legal proceedings.

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 receive a one-time payment severance pay and the average salary for three months (if they are not employed earlier).

What will be indicated in the work book

According to Art. 81 of the Labor Code, 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 the accrued amount 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' allowance (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.

In conditions of an economic crisis, dismissal due to staff reduction at an enterprise is a forced measure to equalize the financial balance. Reduction occurs by reducing the number of employees, while eliminating a specific position from the schedule. For example, the duties of a reduced personnel officer are assigned to an accountant. Due to the current circumstances, citizens who have lost their jobs, the Labor Code guarantees payments and various guarantees, which are regulated by the provisions of Article 180. Therefore, in such situations, it is important to know your rights, what you can count on and how the dismissal procedure works according to the law. This process is provided for by the second paragraph of Article 81 of the Labor Code of the Russian Federation. It is due to the presence of a number of subtleties and nuances, which cannot be ignored.

Reduction of staff units

The downsizing procedure itself is legal; it is a kind of tool that company management willingly uses when it wants to “optimize” its staff. But since the layoff process is lengthy and costly, some unscrupulous employers ask employees to write a statement at will, explaining this by the fact that the formulation is simpler and the calculation occurs faster. The reduction must be carried out without deviating from the legislation in order to avoid problems with the law. When the screening of staff positions is carried out in violation, the employee has a chance to be restored to his previous job, but to do this he will have to file a claim in court. Preferential rights when an employee is laid off, allowing him to remain in the organization, are described in Article 179 of the Labor Code of the Russian Federation.

Grounds and reasons for staff reduction

The legislation does not provide a clear definition of the situation when management can carry out the process of reducing subordinates. The grounds in all cases are individual. The definition of the Constitutional Court of the Russian Federation No. 867-О-О dated December 18, 2007 states that staff reduction can be made for any economic need. Responsibility for the process lies solely with the employer. Before starting the case, the order indicates the reasons for the dismissal. Here are the main ones leading to the reduction:

economic crisis in the country ;
modernization and introduction of new technologies. in which some employees are unclaimed;
financial and economic difficulties of the enterprise why there is a delay in wages for employees;
the previous staff stopped coping with their responsibilities and or there are unnecessary positions.

Each organization has its own reasons for downsizing

Notifying employees about layoffs

Based on the Labor Code, the reduction takes place in several stages, during which management must comply with the requirements and carry out actions in a strict order:

Before reducing the headquarters, an order is prepared 2 months in advance. After indicating the reasons, it is certified by the signature of the authorities (Article 180 of the Labor Code of the Russian Federation).
In addition, after the decree is issued, the candidate for dismissal must be given a notice of layoff .
Next, employment centers and the trade union are brought up to date .

A company can exclude employees from its ranks without notifying them two months in advance, but then it is obliged to immediately make a calculation and also charge people compensation in the amount of two months’ average earnings (Labor Code, employee reduction, Articles 178 and 180).

Who is the first to be laid off according to the law?

Let's look at how the law determines who will not be laid off at work. Management has a special regard for those employees who have high qualifications and labor productivity. In order to push them to the last place, the authorities with the commission collect information and evaluate the position and effectiveness of personnel within the headquarters. It is not indicated anywhere how many people should be on the commission; this is decided by the manager based on the scale of the enterprise, the number of workers and other subjective aspects.

Notifying an employee about layoffs

But when there is a choice between identical positions or responsibilities are merged and assigned to one employee, managers and candidates for layoffs must know the law based on Article 179 of the Labor Code of the Russian Federation. In theory, people with high labor productivity should be retained at headquarters. And when the qualifications of employees are equal, it is worth considering that those who have privileges compared to their colleagues will not be laid off. The right to remain at work has:

an employee who has been injured or caused harm to health in production in this organization;
a person who has more than two dependents ;
disabled person and combat veteran th;
an employee who is undergoing advanced training courses. and at the same time works at the enterprise;
employee, if he is the only breadwinner in the family .

In addition to individual positions, entire divisions, divisions, and departments may be laid off. But, if there are “non-redundant persons” there, then they are transferred to other departments of the enterprise and are not deprived of their jobs. Non-redundant employees are:

citizens disabled for some period- this is stated in part 6 of Article 81 of the Labor Code of the Russian Federation;
persons conducting collective bargaining in the company And problem solvers headquarters;
if employees are on vacation. this includes different kinds: leave without pay, basic, educational, additional;
women on maternity leave(Part 4 of Article 256 of the Labor Code of the Russian Federation);
trade unionists– paragraphs 2, 3 and 5 of Article 81 of the Labor Code of the Russian Federation;

Employees with privileges are not subject to layoffs

single mothers with children up to 14 years old. If you have a disabled child under 18 years of age. Women with children under three years of age. Also, dismissal does not apply to foster parents and guardians, if the guardian is caring for the child without a spouse. This provision is described in Article 261 of the Labor Code of the Russian Federation;

women who are pregnant And. Dismissal can only be done if the entire company is liquidated - on the basis of Article 261 of the Labor Code of the Russian Federation.

When the dismissal process is violated and an employee who fits one of these provisions is fired, an application is filed with the court, after which the person is automatically reinstated. In addition, the court obliges the employer to pay for forced absences to the employee. But those who are classified as “privileged” employees must be compensated a decent amount in the event of layoffs during liquidation of the enterprise.

Dismissal procedure

Abolition of staff positions for any organization is a rather complicated procedure, since deviation from the stages is fraught for the manager legal proceedings. Let us consider in detail how to correctly lay off an employee through staff reduction. The order of the dismissal stages is as follows:

Changing the organization's staffing table And. The newly introduced schedule provides for the actual elimination of the position, and only then the reduction of employees. Afterwards, all amendments are approved by order.

Sample order to carry out reduction measures

Coordination of changes and approval of a different schedule. The decree on the intended dismissal is issued at least two months before the operation. When a massive layoff is planned, employees are notified by notice three months in advance. The order indicates the reason why the reduction is taking place, the people responsible for the dismissal process and the timing of implementation are noted.

Notification of employment service and trade union. Guided by Part 2 of Art. 25 of the Labor Code of the Russian Federation, the manager must inform the employment authorities and the trade union. Notification shall be in writing given two weeks prior to the commencement of the action. If a massive layoff is carried out, the trade union organization and the employment service are informed several months in advance. The document should include the position, profession, payment terms for each employee and all other qualification requirements to them. The sent message is recorded in the employer's journal of outgoing documents. The union must voice its decision regarding the notification a week in advance. When a refusal is received, the parties hold negotiations within three days, where positions are agreed upon, the results of which are documented in a protocol. If a common opinion has not been reached, and the head of the company has carried out the reduction, the union files a complaint with the Federal Labor Inspectorate. There they examine the case and make an appropriate decision. When minors work in a company, in order to carry out layoffs, you must first obtain permission from the State Labor Inspectorate and the Commission on Minors' Affairs in accordance with Art. 269 Labor Code of the Russian Federation.

Formation of the commission. The commission should include a manager, a lawyer and a representative of the trade union committee.

Formation of a staff reduction commission

Notifying employees with individual notification. Each employee is notified personally that a layoff will soon take place; after familiarization, the person must sign. It should be noted that the legislation provides for different notification periods for individual categories subordinates. The notice is generated in two copies, one goes to the employee, the other remains with management. Afterwards it is registered in the journal of notifications and proposals to employees.

Offer of other positions. For those who are subject to dismissal, management is obliged by another order to offer new positions. The document is prepared in two copies. Next, it is registered in the journal of offers to the employee. Copies of responsibilities must be attached with proposed positions for your review. It is important for managers to indicate the period within which the employee must make a decision. All that is required of a person is to decide to move to another place or write a refusal and certify it with a signature. If an employee has expressed consent to take another position, then the registration procedure is carried out according to the standard scheme. So, after consent, amendments are made to the employment contract by drawing up additional agreement. Then management issues a decree to transfer the subordinate to another workplace. If within two months the employee has not agreed to any of the proposed vacancies, an order is prepared for him to dismiss him due to staff reduction using the unified T-8 form.

Issuing an order to terminate an employment contract A. After review, the document is signed by each dismissed employee. If for some reason the subordinate refuses to read the order, then they act in accordance with Part 2 of Article 84.1 of the Labor Code of the Russian Federation. Afterwards it is registered in the organization’s order journal. Further, the procedure for dismissal due to staff reduction involves drawing up a settlement note, the final settlement with the employee takes place and the handing out of a work book.

List of employees subject to dismissal

Settlements with employee(s). On the day of dismissal, according to Art. 84.1 of the Labor Code of the Russian Federation, the employee is also being calculated, including all additional payments, compensation, wages and funds for untaken vacation. Also, during a layoff, a person is awarded severance pay in the amount of average monthly earnings. In addition, the employee retains this benefit for two months until he finds a job. In special situations, the payment extends to the third month of searching. Employment services give permission for this if the person contacts them no later than two weeks after removal from office. As you can see, the rules for laying off workers at an enterprise and the labor code provide that payments can be issued not immediately, but in stages. Thus, salary, vacation compensation and severance pay are paid during dismissal. The rest is credited after the second and third month according to the conditions described above. The salary is calculated in full with all allowances; a hundred percent amount is paid for unused vacation if the person has worked for more than five and a half months.

Issuance of a work book. First in work book appropriate entries are made. Then the fact of issuing the document is recorded in the work record book. Make a copy of the document of each dismissed employee for the organization’s archive. They hand over the labor. When a person does not show up for a document, a notification is sent to him by email. As soon as the notification has been sent, the organization ceases to be responsible for the delay of the document (Part 6 of Article 84.1 of the Labor Code of the Russian Federation). If an employee comes and picks up a work record book, then he confirms the fact of receipt by signing in the work record book.

When a person is sick or on vacation on the day of layoff, his dismissal is postponed until he recovers or ends his vacation.

What to do if staff reduction is coming

How to behave correctly when making redundancies?

Employees who are included in the elimination list need to know their rights:

Look through the list of privileged persons, perhaps you are among them. If you notice a violation, you need to notify the head of the organization in writing and demand correction on both copies of the documents. If management does not take any measures, you can go to court, the prosecutor’s office or the Rostrudinspectorate.
Insist on another position if you are not offered anything. If you are not satisfied with the options presented, then the refusal must be recorded on paper.
When you are laid off within two weeks, you need to register with the employment service. This will extend your receipt of payments for two months.
As soon as there is a rumor about staff reductions, you should not rush to the extreme and write a statement of your own free will. Wait for the required process, thereby you will not deprive yourself of the benefits and payments provided by law.

Interesting on the topic:

What are the rules for laying off workers?

If a business manager is going through difficult times, he may cut the number of employees or positions if he needs to save money. But can he do whatever he wants, or are there any rules for laying off workers? This will be discussed in our article.

Labor Code

First, let's open Chapter 13 of the Labor Code Russian Federation and let's see what the law says about employee reductions.

Dismissal due to reduction is mentioned in paragraph 2 of Article 81 and refers to cases of termination of an employment contract at the initiative of the employer.

Are we reducing staff or employees?

When planning staff reductions, it is necessary to understand the difference between reducing the number of positions and reducing the number of employees.

When job cuts are planned, several jobs are removed from the staffing table. For example, if the company had a manager, a production manager, an engineer and a salesperson, and as a result of the decision to make redundancies, it was decided to remove the position of manager - this is a reduction in positions.

If the enterprise had five engineers, three managers and two salespeople, and when the staff was reduced, they decided to leave only two engineers, two managers and one salesperson, then this is a reduction in the number of employees.

What does the employer have the right to?

It would seem that if the law stipulates that the employer has the right to reduce its staff if necessary, then everything is simple: you need to decide on which positions or people you can save money on, and act. But in reality, there are redundancy rules that must be followed. Let's take a closer look at them.

Reduction procedure

The procedure for terminating an employment relationship due to layoffs is structured as follows:

the employee receives notice of an upcoming layoff;
a dismissal order is issued for the enterprise;
On the last working day, the final payment is made to the dismissed employees.

As you can see, it is similar to the procedure for terminating an employment relationship in any other case.

Deciding to downsize

Although a business owner or employer may be going through difficult times, he cannot part with his employees at any time convenient to him. In order to cut people or positions, there must be a good justification - one that will satisfy labor commission, if a precedent arises. For example, it will be necessary to prove that the industry in which positions are being cut is completely unprofitable, and the owners of the enterprise simply had no other choice - just to close this area and exclude all employees employed there from the staffing table.

Where should you start cutting?

Before you start getting rid of employees, especially in a large enterprise, you should check whether there are so-called “empty” vacancies that can be excluded from the staffing table first. This means that if in an organization, for example, there are positions of five accountants, and only three people actually work in these positions, then you can exclude those two that do not have an actual employee. Then you won’t have to fire anyone, you can avoid paperwork, but if the enterprise really needs to free up free funds, then such a measure, of course, will not save or help anyone.

If it is not possible to simply cross off positions on paper from the list, you need to start cutting people off. In this case, the following should be fired first:

pensioners,
those employees who have less experience and seniority;
those employees who bring less benefit to the company.

But it is necessary to understand that formulations such as “brings less benefit” must also have a strong basis, for example, some criteria for comparison - otherwise the employee may try to challenge his dismissal in court.

Who can't be fired?

To understand how to properly lay off workers, you need to know that there are certain categories that cannot be dismissed due to layoffs, since this is illegal. These include:

minor employees;
pregnant employees;
women with children under three years of age;
employees who alone are raising a child under twelve years of age or a disabled child under eighteen years of age.

The employer can lay off such employees only in the event of complete liquidation of the enterprise - then there is simply no other choice left. In all other cases, if, for example, you need to choose between a very qualified and responsible employee and a pregnant employee who is not so good and not so experienced, the choice, alas, will have to be made in favor of the latter.

Transfer of employees

p>Even if the employer has outlined a list of employees with whom to part with, the rules for dismissal due to staff reduction state that, before terminating the employment contract, it is necessary to offer the released employees a transfer to other vacant positions. However, they may be less paid and less prestigious.

For example, a senior manager may be offered all the available vacancies at the enterprise, from just a manager to a watchman, and it is up to him to decide whether to accept the offer or refuse. The employer is not obliged to offer vacancies that require higher qualifications. It is advisable to record all such proposals in writing, as well as the employee’s refusals.

Notification

Most important point when staffing is reduced, employees must be warned about this in writing two months before the upcoming event. Within the same time frame, the employment service and the trade union committee must be notified - if there is one at the enterprise. Moreover, if there is a decrease in the number of employees, for example, by fifteen people at once, it is impossible to issue one warning paper to everyone; each employee must be notified individually, against signature, and an act of refusal to sign will not be suitable in this case.

Order of dismissal

An order in form T-8 is drawn up in the same way as in other cases of termination of employment contracts. If there is a massive layoff, all employees can be included in one order. The wording “to reduce staff” or “to reduce staffing levels” is required.

On the last working day, dismissed employees must be given everything Required documents and money.

Documents include:

work book with the corresponding entry;
certificate of average salary for Last year;
any certificates and documents, the issuance of which does not contradict the commercial or other secrets of the enterprise, upon the written request of the employee.

The funds that must be given to the employee must include:

current salary and bonus;
compensation for unused days vacation - in this case, compensation is not collected from the employee for those days that he is on this year took “in advance”;
severance pay in the amount of the average monthly salary.

If an employee was sick at the time of dismissal, the company pays him sick leave in full. For example, an employee should be fired on the fifth of November, but only closed the sheet on the tenth of November - he is entitled to payment up to the tenth inclusive.

If within a month after the layoff the former employee does not find a new job, the company is obliged to issue another average monthly earnings.

If the employee is registered with the employment service within two weeks from the date of dismissal, the rules for laying off an employee state that - by decision of the service - the enterprise can pay for the third month of the employee’s stay without work.

What is a redundant employee entitled to?

As mentioned above, the employee has the right to move to other vacancies available at the enterprise. As a rule, there should be at least three new job offers - if, of course, the company has so many unfilled vacancies.

A resignation letter from an employee who is being laid off is not required, since the initiative to terminate the employment relationship comes from the employer.

An employee can reach an agreement with his boss at any time and leave the company without waiting for the expiration of the two-month period - in this case, he must write a letter of resignation. And it must be remembered that in this case, benefits are not due, but compensation is due for all days before the expiration of the warning period. For example, if an employee was supposed to be fired on the first of October, but quits on the fifteenth of September, he is entitled to payment for the days from the fifteenth to the first.

Dismissal due to staff reduction. Nuances. How to behave correctly.

The dismissal of an employee due to staff reduction is included in Article 81 of the Labor Code of the Russian Federation, which considers all cases when an employment contract is terminated by the employer.

○ Dismissal due to staff reduction.

✔ Labor Code on dismissal due to staff reduction.

Article 81 of the Labor Code of the Russian Federation combines both cases of dismissal for absenteeism, violation of discipline or labor protection measures, and cases when an employee quits, although he is not guilty of anything (these include, in addition to layoffs, liquidation of an organization, for managers and their deputies and chief accountants - change of owner of the organization).

The Labor Code of the Russian Federation does not decipher the difference between staff reduction and staff reduction. In practice, the difference is also insignificant and consists only in the fact that when the number of employees is reduced, the position in the staffing table is retained, but there will be fewer workers in it (for example, instead of three managers, there will be only one left in the department).

When staffing is reduced, a specific position is completely excluded from the schedule (for example, the position of a personnel officer is abolished at an enterprise, and his duties are transferred to an accountant).

✔ Who can and cannot be laid off?

Despite the fact that the reduction in the number or staff of employees depends entirely on the initiative of the enterprise management, the law provides for certain benefits for a number of categories of employees.

I'll tell you more about them below. For now, I will say that when reducing there is a rule about preferential retention at work. Art. 179 of the Labor Code of the Russian Federation provides that during layoffs, workers with less qualifications and lower labor productivity should be dismissed first.

In practice this usually means that workers with less work experience are laid off first. since seniority usually implies experience.

When making reductions, the results of qualifying exams, the employee’s education should be taken into account (in the same position, an employee with a higher education will have an advantage over a colleague with a secondary specialized education), as well as the indicators achieved by each of the employees over the previous period.

The Labor Code of the Russian Federation and other acts also require that the following employees have priority when remaining at work:

Having disabled children.
Single mothers and fathers.
The only breadwinners.
Suffering from injury or occupational disease received at this enterprise.
Disabled war veterans.
Heroes of the USSR and the Russian Federation, holders of the Order of Glory.
Victims of the Chernobyl disaster and the Semipalatinsk tests.
Improving qualifications in the direction of the organization, combining training with work.
Employee inventors (oddly enough, the USSR Law “On Inventions in the USSR” in this part is still in force).

In addition, some employees cannot be dismissed by the employer at all except at their own request, by agreement, or for committing an offense.

In relation to layoffs, in addition to regular beneficiaries, members of trade union leadership at least below the shop level cannot be dismissed.

It is prohibited to dismiss elected representatives of a collective of employees who participate in resolving disputes with the employer.

✔ The main reasons for the reduction.

The law does not directly establish in what cases an employer has the right to reduce the number or staff of employees.

The Constitutional Court of the Russian Federation, in its ruling No. 867-О-О dated December 18, 2007, established that this is the right of the employer in cases where economic necessity requires it.

However, in turn Supreme Court The Russian Federation, by definition of December 3, 2007 No. 19-B07-34, introduced the rule that in the event of a dispute, the court has the right to verify the need and validity of the reduction.

Thus, an employer who wishes to take such measures must order about the reduction, indicate the exact reasons for the dismissal.

As a rule, the reasons forcing workers to be laid off are:

Low profit of the enterprise and the inability to pay salaries to the previous staff.
Low efficiency of the previous staff and the presence of positions that are not needed.
Changes in technology or production organization, in which some workers are unclaimed.

✔ Prerequisites.

Dismissals of employees due to reductions are possible provided that the employer meets a number of conditions

Full and strict compliance with the reduction procedure provided for by law .
If the enterprise previously concluded collective agreements with employees, or the employment contracts of those being dismissed contain additional guarantees upon dismissal, these must also be observed.
Justification for dismissal .
As already mentioned, in the event of a dispute, the court has the right to check whether the dismissal was justified economically and organizationally.
Employment service notification.
This point is worth highlighting separately, since some employers manage to completely forget about this requirement, as a result of which they are then forced to pay fines and pay employees for forced absenteeism.

✔ Order, procedure and rules for dismissal due to reduction.

Reduction of staff for any enterprise is a rather complicated procedure, and violation at any of its stages is fraught with a fine or legal proceedings for the employer.

Dismissal must be done in the following order:

The management of the enterprise issues an order on the planned reduction at least two months before the employee is to be dismissed (Article 180 of the Labor Code of the Russian Federation). Each of the employees subject to dismissal is personally warned that a reduction is expected and, upon signature, reads the text of the order. However, an order to reduce staff should not be confused with an order to dismiss a specific employee - such orders are issued much later, when the deadline for dismissal approaches.
For employees who are subject to layoffs, the management of the enterprise is obliged to offer any other position that meets the qualifications of the dismissed employee. It should be remembered that offering another job is not a one-time action: the employer is obliged to notify those being dismissed about vacancies opening at the enterprise right up to the termination of the employment contract. The employee is obliged to either accept the offer and continue working in another position, or refuse - and the refusal must also be recorded in writing, dated and signed by the employee.
The employer notifies the trade union organization, if one exists at the enterprise. The notice period is the same as for employees, but if a mass layoff is planned, the union should be notified not two, but three months in advance. This rule was established by the ruling of the Constitutional Court of the Russian Federation. In turn, the trade union must express its opinion on the dismissal within seven days. If the trade union does not agree to layoff workers, then by law, within three days positions must be agreed upon. If, in this case, no agreement was reached, the employer has the right to dismiss workers, but the trade union can appeal this decision to the Federal Labor Inspectorate (Rostrudinspektsiya). The inspectorate, in turn, may recognize the dismissal as illegal and demand that the dismissed person be reinstated at his previous place of work with payment. compensation and for forced absenteeism. The decision of the Rostrudinspektsiya can be appealed by the employer in court.
In addition to the trade union, the employer also warns the employment service within the same period of time (two, in case of mass layoffs – three months).
If within two months the employee does not agree to any of the vacancies offered to him, the employer issues a dismissal order due to staff reduction. The order is usually issued on the unified T-8 form. In this case, the employee is issued a work book, is paid a salary for the days worked in the last month of work and compensation for unused vacation days (depending on the time worked since the last vacation). The most important thing is for the employee, in accordance with Art. 178 of the Labor Code of the Russian Federation, severance pay is paid. Its amount is not less than the average monthly salary, but according to an employment contract or collective agreement with employees, the benefit can be increased.
If an employee is registered with the labor exchange after dismissal, but is not employed, the former enterprise continues to pay him the average monthly salary for two months (but with the deduction of the severance pay already received).
If the employee agrees, he can resign due to reduction before the expiration of the two-month period. In this case, the employer pays him, in addition to severance pay, also a salary for the time not worked between the day he actually quit and the day he was supposed to quit according to the employer’s plan. In addition, the employment contract or collective agreement may provide for other payments in case of staff reduction.

✔ What entry will be included in the labor report when a layoff is made?

When an employee is dismissed, an entry will be made in the work book, which must indicate that he was fired precisely due to a reduction in the number or staff of the organization, with reference to clause 2, part 1, art. 82 Labor Code of the Russian Federation.

Since meeting the deadlines during a reduction is an essential condition, they should be brought together and indicated again:

Order on planned dismissal due to reduction - at least two months in advance;
Warning to the employment service and trade union organization (if there is one at the enterprise) - no less than two months, in case of mass dismissal - no less than three.
The deadline for paying wages for the part of the month worked, compensation for unused vacation and severance pay is not later in the day dismissals.
The payment period for the average salary for an employee registered with the employment service but not employed is up to two months.

Violation of these deadlines may lead to a fine for individual entrepreneurs - up to 50 minimum wages, for legal entities– up to 500 minimum wage.

○ How to behave correctly when making redundancies?

For an employee who is on the redundancy list, you need to remember your rights:

The first step is to check whether you are on the list of persons who cannot be dismissed due to staff reduction and whether you are taking advantage of being retained at work.
If yes, then you must inform your employer in writing. The best way will draw up a letter in two copies, give one to the head of the enterprise, and on the second require a mark on receipt of the first copy. If the employer does not listen to your opinion, this will be excellent evidence for the Federal Labor Inspectorate, the prosecutor's office or the court.
Demand that you be offered another job at the company.
It is up to the employee to agree or not, but the refusal must also be recorded in writing. Otherwise, you can always refer to a violation of the law, in which case the employer will be fined and the order to dismiss you will be cancelled.
After dismissal, you must register with the employment service within two weeks.
In this case, you will be able to receive the average salary for your previous job for another two months if the service is unable to employ you during this time.
If we are talking about staff reductions, in no case should you write a letter of resignation of your own free will or agree to dismissal by agreement of the parties.
In this case, you lose the right to all benefits and payments provided by law.

○ Nuances of dismissal due to reduction:

Staff reductions have their own characteristics for certain categories of workers. Let's look at how the reduction is made:

✔ On sick leave.

During a period of temporary incapacity, an employee cannot be laid off (Part 6, Article 81 of the Labor Code of the Russian Federation).

✔ During vacation.

An employee on vacation also cannot be dismissed due to redundancy. Both temporarily disabled people and vacationers can be dismissed only at their own request, by agreement of the parties, and also in the event of liquidation of the enterprise.

✔ Pensioner.

Workers receiving an old-age pension enjoy the same rights as everyone else - age discrimination is expressly prohibited by Art. 3 Labor Code of the Russian Federation. Considering that pensioners usually have the greatest seniority, in practice, they may turn out to be candidates for remaining at work even if they are laid off.

✔ A woman with many children or a single mother.

According to Art. 261 of the Labor Code of the Russian Federation, parents who alone raise a child under 14 years of age (a disabled person under 18 years of age) cannot be fired - this norm applies to both mothers and single fathers. For parents with many children who have three or more young children, layoffs of the only working parent are not allowed if the youngest child has not reached the age of three.

✔ Part-time worker.

For these employees, the dismissal procedure is practically no different from the usual one. However, there is one controversial point: should the employer pay them not only severance pay (to which they are entitled like other employees), but salary for two months?

The fact is that these payments are made in order to support the employee until he gets another job - but the part-time worker is already employed! Unfortunately, there is no single opinion of experts, no explanations from the courts or the Rostrudinspektsiya.

✔ Maternity or pregnant women.

A woman during maternity leave, as well as to care for a child under three years old, cannot resign due to staff reduction (Article 261 of the Labor Code of the Russian Federation)

✔ Early.

The law allows the dismissal of an employee due to staff reduction before the expiration of a two-month period, but this is permitted only with the consent of the employee himself and with the obligatory payment of his salary for the unworked part of these two months.

Basic rules for staff reduction

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Sometimes a company has to downsize its workforce in order to optimize production. This leads to the dismissal of employees of the organization. The procedure for terminating employment due to layoffs is divided into three stages:

the employer notifies staff of future layoffs;
the company issues an order to dismiss employees;
The last working day for staff is the calculated one.

Employee reduction rules

Before you start firing workers, it is necessary to conduct an audit and identify ineffective personnel. For example, if an enterprise has 6 programmer positions, but in fact only 4 are working, then “empty” staff positions can be confidently excluded from the list. Therefore, no one needs to be fired. But if the organization is in difficult financial situation, then this option will not help.

If there are no “empty” vacancies, then you need to start firing first:

employees of retirement age;
workers with less seniority and real experience;
employees who are not working at full capacity.

Who cannot be fired by law

employees who have not reached the age of majority;
pregnant women;
employees with children under 3 years of age;
workers raising children under 12 years of age (disabled people under 18 years of age).

Such employees can be fired only upon liquidation of the organization (an application for liquidation of the LLC is first written). If you need to fire a qualified employee or a pregnant employee. then the manager has the right to dismiss the latter.

Dismissal order and settlement

When dismissing personnel, he draws up an order to terminate the employment relationship (Form No. T-8). By law, the employer must pay dismissed employees on the last working day and issue them with the necessary documents. This includes:

employment history;
document (certificate, extract) about wages for 1 year;
other papers (if necessary) at the request of the employee, if they do not interfere with the commercial activities of the organization.

What rights does a laid-off employee have?

If there is a layoff, the employee has the right to apply for other vacancies at the enterprise. When being laid off, an employee does not have to write a statement, since the initiator of the severance of the employment relationship is the manager.

By law, an employee has the right to resign without waiting for the expiration of a 2-month period. It is enough to submit an application addressed to the head of the enterprise. However, under such circumstances, the organization does not pay severance pay to the employee. He is entitled only to compensation for the days that have elapsed from the date of filing the application.

Early termination of employment relationships in case of layoffs

The Labor Code obliges staff to be given notice of layoffs at least 2 months in advance. Early termination of employment relations occurs with the consent of the employee. In this case, the employer is obliged to pay additional compensation in the amount of the employee’s average earnings (Article 180 of the Labor Code of the Russian Federation).

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Payments upon layoff

Many workers are faced with a situation in which you could be laid off, especially now when the economic situation in the country is somewhat unstable. From the moment an employee is informed that he will be laid off, he has a lot of questions in addition to where to look for a new job: are there any payments due? If yes, in what size? What if I am a pensioner or a pregnant woman? How should the dismissal procedure proceed?

Staff size optimization

First, you need to understand the basic theoretical issues that the reduction procedure raises.

It is necessary to clearly understand the difference between downsizing and downsizing. Thus, the number of employees is the entire payroll of employees specific enterprise. If we are talking about downsizing, then the number of employees in a certain position is reduced. For example, it is necessary that there are two engineers at the enterprise instead of the currently available ten.

The staff usually includes all management and administrative employees at a particular enterprise. When reducing staff, identical positions or employees of the entire unit being reduced must be excluded from the staffing table. When it comes to reducing a certain staffing unit, then not just one employee quits, but everyone who, according to the staff schedule, performs work in a certain position.

Legislative grounds

If the enterprise has a question about the need to reduce the number or staff of employees, then on the basis of paragraph 2 of paragraph 1 of part 81 of Article of the Labor Code of the Russian Federation, this is the determining factor for the early termination of an employment contract with specific employees.

To begin the dismissal procedure on this basis, you must make sure that all actions are carried out within the framework of the law, i.e. the employer is obliged to refer to the fact that the company really needs to make reductions.

In addition, in accordance with Article 179 of the Labor Code of the Russian Federation, it is necessary to respect the right of priority to retain a job for some employees (for example, a pregnant woman and those who have higher qualifications) and the order of layoffs. It is imperative that an employee who is notified of an upcoming layoff must be provided with alternative vacancies (if any at the enterprise) taking into account his abilities, qualifications and health status.

In accordance with By the decision of the Constitutional Court of the Russian Federation, dated December 18, 2007, serial number 867, no employer is obliged to in any way justify his decision that he needs to make a reduction. He independently makes decisions that he considers economically beneficial for his enterprise. Third-party organizations, primarily the court when making a decision on the complaint of a dismissed employee, cannot decide whether it was necessary to reduce personnel. For example, the court is only authorized to resolve the situation regarding the legality of the dismissal procedure. In practice, there are often cases when in court the employer still has to justify his decision and refer to certain documentation of the organization.

Payments upon dismissal of an employee

In accordance with current labor legislation, an employee must be notified of an upcoming layoff at least two months before the day on which his actual dismissal occurs. A special order is issued about this, which is read to the employee against signature, indicating the date of familiarization.

In the case where the employee to be laid off has read the document, but categorically refuses to sign it, a special document must be drawn up that reflects this fact.

During the period from introduction to dismissal, the employee must be offered other available positions in accordance with his skills and abilities. If he refuses the proposed options, then after two months the employment contract is terminated. The next stage after termination is the final settlement with the employee.

Severance pay

Severance pay, as well as other payments, must be transferred to the employee on his last working day. The same time is set for the transfer of the work book.

What is severance pay upon dismissal? This is the payment of a certain amount of money to a dismissed employee from an enterprise that optimizes the number of employees through a reduction procedure.

Severance pay includes the amount of average monthly earnings, taking into account additional deductions.

The employee is also entitled to similar amounts for the next two months after dismissal until employment (calculation is made taking into account the amount of severance pay). IN exceptional cases the employee will be paid for the next three months after dismissal (within 2 weeks from the date of official dismissal, the employee registered with the labor exchange).

Amounts due to the employee as severance pay, on the basis of paragraph 3 of Article 217 of the Labor Code of the Russian Federation, are not subject to taxes, except for the case when the amount of payments exceeds 3-month average earnings.

The calculation of average earnings due for payments is made on the basis of Article 139 of the Labor Code of the Russian Federation, as well as the Decree of the Government of the Russian Federation, dated December 24, 2007, serial number 922. The calculation period is taken to be 12 calendar months preceding the day of dismissal. When the average is calculated, a person's entire earnings are taken into account based on how much they were actually paid.

The amount of average earnings must take into account:

Premiums and bonus payments, rewards. No more than one type of additional remuneration per month during the calculated period is taken into account. If there are more bonus amounts, then you can take them into account in the month where there were none;
Remunerations based on the results of the year, in connection with length of service, length of service, etc.;
Other payments included in the monthly salary.

The main rule for calculating the amount of average earnings: it should not be below the minimum subsistence level established in the country on the day of dismissal.

By law, enterprises must recalculate wages. Find out whether the indexation of vacation pay can not be recalculated for all employees.

The deadline for paying maternity benefits is clearly established by law. See when the money is due.

If the employee subject to redundancy has not worked for 12 months at this enterprise, then the entire period of service must be taken into account when calculating the amount. If the work time was not even one month, then for the calculation it is necessary to take the amount of his tariff rate or official salary.

The following periods are not taken into account when calculating average monthly earnings:

when the employee did not receive the entire amount worked, but only the average payment for his work (such periods cannot include the time when a woman, in accordance with the Labor Code of the Russian Federation, can leave the workplace to feed the child);
sick leave time, as well as social leave provided in connection with pregnancy and childbirth;
when the employee was not at the workplace due to circumstances beyond his control;
when there was a strike (the employee did not participate, but could not work);
additional time provided to a person to care for a disabled child;
time when the employee was not at his workplace for any other reason.

The amount of earnings includes all payments from the employer, including bonuses, products in kind, as well as other payments.

Compensation

Severance pay is not the only amount a person will receive upon dismissal. So, he is entitled to some additional compensation.

For example, if an employee notified according to the rules expresses a desire to leave the enterprise early, he informs the employer about this, and he, in turn, must calculate an additional amount in the form of compensation for the time that he did not use after the notification. Those. If the dismissed employee worked for 5 days after notification (instead of 2 months) and expressed a desire to be dismissed earlier, he must receive additional compensation in the amount of average earnings for the time not worked until the end of the notice period in the case where the employer agrees to let him go in advance. Also, be sure to make sure that you are paid wages for the time worked in the company, as well as unused vacation (if it was actually not used).

Second and third month

If you were laid off due to a reduction in headcount or staff, then know that you have the right to maintain your average earnings for the next two months after the day you were officially laid off. This rule applies until official employment, but no more than two months after dismissal. Thus, an unemployed person has some guarantees provided for him by the state, in order to provide him with a certain amount of money until he gets a new job.

If an employee applies for employment to the Employment Center within two weeks after dismissal, then he can count on another extra month of subsidies from the former employer (if he did not find a job).

The decision to extend the period is made by the Employment Center, and payment is made at the expense of the former employer. This kind of additional benefit remains until the person is officially employed (during these 2-3 months). As soon as a citizen finds a new job, payments stop. If a person starts a new job in the middle of the month, then the previous employer only reimburses unemployed time.

For pensioners

For persons who have reached retirement age and have been laid off, the Labor Code in 2016 does not provide for any specific payment requirements.

So, a dismissed pensioner can count on:

Severance pay, which is equal to average monthly earnings. In case local normative act employer has several larger size, then the pensioner should receive exactly this amount.
Compensation for average earnings for two (three) months while searching for a new job.

We remind you that reaching retirement age is not the main criterion for dismissing such employees in the first place.

By law, they have exactly the same rights to further work or payment of benefits in the event of layoffs as other employees. In addition, people who have reached retirement age have higher qualifications and productivity, which, on the contrary, can be considered a positive factor against the reduction of such an employee.

Various ways to cease operations usually lead to mass layoffs. Read about liquidation of an LLC by merger.

Returns of defective items require proof of defects. Read more in the article.

How is vacation pay paid? The answer is here.

How to get a?

Decor

Based on current legislation, all settlements with the employee regarding remuneration for time worked and severance pay must be processed and made on the last day of work of the employee subject to staff reduction. Moreover, before this day he must submit a bypass sheet drawn up according to the rules with information that he has no debts to the enterprise.

In order to receive amounts due in the next two (three) calendar months after dismissal, it is necessary, at the end of the month during which the dismissed employee did not find a new job, to contact the former employer for a settlement.

In this case, the employee must confirm his words with documents (provide a certificate from the Employment Center, show his work record book). Only after this can the settlement department employee begin processing payments. If such documents are not provided, no compensation will be provided.

Where are they paid?

All payments due to an employee who has been laid off are paid by the employer locally previous job employee.

So, if it is necessary to compensate for the time spent searching for a new job within two calendar months after dismissal, then you must submit the relevant documents to the department responsible for payments at the previous place of work from which the person was dismissed.

If you need to make payments for the third month, you must contact the same employer, but you must have a certificate from the Employment Center with you. IN modern world It is very important to know your rights, especially if they affect the sphere of labor relations, since employers often take advantage of the illiteracy of their employees. If you have been laid off and don’t know what to do and how to go through this procedure, then contact a competent lawyer who will help you and tell you what to pay attention to when laying off, and also indicate what payments and rewards you can count on.

IN Lately Many organizations are experiencing a reduction in the number of employees. Such changes can be caused by various internal and external factors.

Let's figure out what reasons exist for reducing the number of employees, and what an employee should do in this case.

Many people mistakenly equate the concepts of reduction in “numbers” and “staff”. In the first case, we are talking about a simple reduction in the number of people working at the enterprise. The second situation involves the elimination of individual positions from local documents, for example, the staffing table.

Of course, a reduction in the number of employees leads to a reduction in staff. And here Feedback does not always work, because you can transfer a person to another position, while maintaining the range of his duties and powers.

Reasons for staff reduction are: special conditions, allowing the employer to legally eliminate positions and reduce the number of subordinates.

Important! Article 179 of the Labor Code of the Russian Federation gives most citizens guarantees for the safety of their jobs, provided that the length of service, qualifications and other production factors comply with the requirements of the law.

Let's look at the main causes, for which a specific position can be eliminated:

Financial and economic difficulties. In situations where the organization's activities become illiquid and bring large losses, management often resorts to staff reduction to reduce organizational costs. This solution helps the company stay afloat even in a crisis, without losing functionality.
The need to reduce the number of employees. This basis is used when it is necessary to increase the productivity of the organization. In this case, one or more people are removed from the staffing table, and their responsibilities are delegated to others.
The need to reduce staff. Under this basis, positions that are no longer needed in the structure are removed. For example, a change in the direction of a company's activities is often accompanied by the liquidation of entire departments.

Important! All grounds for removing a position and laying off an employee must be supported by appropriate orders and adjustments to the staffing table.

In any organization there are people who can be fired as a last resort, even if there is every justification for layoffs. They are given special advantages by Article 179 of the Labor Code:

Citizens who have two or more dependents under their care.
Workers in whose families they are the only source of means of subsistence.
Employees who received occupational diseases or injury while performing work duties.
Disabled people.
Pregnant women and mothers with children under three years of age.
Employees who improve their qualifications in parallel with their main job.
Single mothers or guardians with children under 14 years of age.
Minor employees.

Can an employee find out the reason for dismissal?

Every citizen has the legal right to find out why he was fired. According to Article 82 of the Labor Code of the Russian Federation, an employer cannot simply deprive a person of his job; he must first notify the primary elected body of trade unions about his decision, which communicates the reasons for dismissal directly to the employee.

The manager must transmit information about upcoming changes in the structure to the trade union at least 2 months in advance. If we are talking about mass dismissal, then the period increases to 3 months.

Not many employees know the requirements for dismissal due to reduction. Because of this, the employer does not seek to disclose the true reasons for his decision, and subordinates are not even interested in the reasons for the reduction of staff. Although dismissed citizens must receive notification along with the trade union organization.

Please note that according to Article 180 of the Labor Code of the Russian Federation, a subordinate is guaranteed advance notice of the liquidation of his position and payment of compensation (with the consent of both parties).

Unreasonable reduction and consequences

Sometimes staff reductions are carried out unlawfully from the point of view of the Labor Code, then the dismissed citizen can go to court and defend his job.

Let's consider several typical situations.

Violation of the dismissal procedure, for example, the employee was not notified 2 months in advance. The employer is obliged to ensure that the information reaches all interested parties against signature.
The manager did not provide the subordinate with information about vacancies within the company similar to the position held and did not prove that employment with his qualifications and experience was impossible.
The advantage of an individual employee was not taken into account; for example, the manager did not evaluate the work efficiency and productivity of everyone who was laid off.
According to generally accepted rules, the employment center must be informed about future layoffs at least 2 months in advance; if this is not done, then the dismissal is unlawful.
There are violations in the maintenance of dismissal documentation, for example, an order to change the staffing table has not been issued - then the procedure is declared invalid.

Important! Even if an employee has been laid off and does not have job retention benefits, he cannot be fired during vacation or temporary disability.

For violation of legislation in the field of labor relations, the manager bears a certain responsibility, which is expressed in the following nuances:

reinstatement of the employee to his previous position with the same salary and other conditions;
pay monetary compensation for forced “absenteeism” that arose during court proceedings;
compensation for moral damage established by the employee and confirmed by the judicial authorities.

The court may satisfy the claim of the dismissed employee, either in whole or in part, depending on the evidence provided and the specific circumstances.

What payments can you expect?

Labor legislation regulates the terms and amounts of all payments that are due to a person when he resigns due to staff reduction.

On the last working day, he receives compensation for unused vacation, severance pay and other well-deserved payments.

Important! For most calculations, average earnings are used, which is calculated taking into account the wages already accrued and the actual time worked along with the day of dismissal.

According to TC the employee must receive:

severance pay equal to average monthly earnings;
other compensation;
within two months after termination of the employment contract, the citizen is also paid the average salary, provided that he is actively looking for work and is registered with the employment center;
the payment period can be increased to 3 months if during this time the citizen has not found a job. To receive money you need to show it to your manager former organization a document from the employment center and a work book without marks;
semi-annual payments from the employment center are provided only to those who worked in the far north.

The accounting department is obliged to pay the employee on his last working day - any delays are illegal. Therefore, in case of any delay or incomplete payment, a citizen can file a lawsuit to recover the due amount and additional compensation for moral damage, unused vacation or unpaid sick leave.

Note! Amounts of money are determined based on the official salary, and everything that was given “in an envelope” is not taken into account.

conclusions

Thus, the most common examples of reasons for staff reduction are changes in working conditions or the production process itself. When modernizing the activities of an enterprise, outdated positions may disappear or the need for large quantities of people.

Management may offer to switch to part-time or part-time work, but, as a rule, this does not suit the majority of employees, and they leave the company.

Dismissals during staff reductions must be carried out on a legal basis, otherwise you should go to court to be reinstated in your previous job or receive compensation.

Also, an employee who loses his job due to layoffs is entitled to payments in the form of severance pay and average salary.

If an employee was dismissed due to staff reduction, he must be paid severance pay, which is equal to one average salary for the year. In addition, the average monthly salary is paid until the next employment, but not more than 2 months. Rights and responsibilities of a laid-off employee Even with layoffs, the employee has the right to many things that he should know in advance and take advantage of his opportunities. These include:

Labor Code of the Russian Federation According to Article 81, Part 3 of the Labor Code of the Russian Federation, the employer is obliged to offer another suitable job for an employee who is being laid off, if one is available.
The employee must be warned about the upcoming layoff only by the manager himself, and sign about it in the documents.

In addition, the company covers insurance payments and guarantees. It is in order to save their own money and be freed from liability that many employers are trying to convince employees to write a letter of resignation of their own free will. In this case, you will not be paid any compensation or insurance.

In addition, an employee who is subject to dismissal is entitled to the following payments:

Salary for the month he worked before dismissal.
If the employee was not on vacation during the current year, then he is entitled to compensation.
Severance pay, which is paid in all cases.
Average salary for the last year of work in the organization.

Peculiarities of paperwork But quite often there are situations when the preparation of a standard package of documents is not enough, and some controversial situations arise.

Article 81 of the Labor Code of the Russian Federation. termination of an employment contract at the initiative of the employer

But this is done only if there is written consent from the employee. If there is consent, the employee is paid additional compensation which is his average earnings. It is calculated in proportion to the time remaining before the expiration of the notice period for dismissal (Part 3 of Article of the Labor Code). During the consideration of the issue of dismissal of the employee, the body of the primary trade union organization was present, which decided that it was impossible to transfer the employee with his consent to another job.
The employer retains the right to determine the staff and number of employees. However, in some cases, this right may be limited by law. In article 14 Federal Law dated December 21, 2001

No. 178-FZ “On the privatization of state and municipal property” (SZ of the Russian Federation 2002. No. 4. Article 251) reveals this essence.

Dismissal due to staff reduction in the Labor Code of the Russian Federation - how to register?

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How is it planned to change the procedure for taxation of income of individual entrepreneurs and self-employed citizens? What has changed in the labor safety rules in road transport? How, according to the RF Supreme Court, do labor and civil law contracts differ? March 26, 2018Preferences for rental relations for social businesses in Moscow Preferential rate for rent, pre-emptive right to purchase premises or participation in the “Ruble for square meter“- about these benefits in the column of Nino Gulbani, legal consultant in the Real Estate and Construction practice of Alta Via. This must happen no later than two months before losing your job.

If both parties agree, then the relationship can be terminated earlier than after 2 months.

In this case, the manager must pay you additional compensation.

Dismissal due to staff reduction. nuances. how to behave correctly.

Dismissals of employees due to reductions are possible provided that the employer meets a number of conditions

Full and strict compliance with the reduction procedure provided for by law. If the enterprise previously concluded collective agreements with employees, or the employment contracts of those being dismissed contain additional guarantees upon dismissal, these must also be observed.
Justification for dismissal. As already mentioned, in the event of a dispute, the court has the right to check whether the dismissal was justified economically and organizationally.
Notification of the employment service. This point is worth highlighting separately, since some employers manage to completely forget about this requirement, as a result of which they are then forced to pay fines and pay employees for forced absenteeism.

[Return to contents] ✔ Procedure, procedure and rules for dismissal due to reduction.

Labor Code: dismissal due to reduction

Order to reduce staff;
A notice of dismissal is made for each candidate;
Those being dismissed put their signatures and date on the issued order regarding the upcoming staff reduction (two months in advance);
An act on the offer of another job to the employee or another position is provided;
Act on the dismissal employee’s disagreement with the offer of another job (dates and signature of the dismissed employee) - in case of disagreement or in case of agreement, prepare an Act on the consent of the other proposed job (date and signature);
Notification letter to the exchange, three months in advance;
Order of dismissal, where it is necessary to have the signature and date of the dismissed person;
Payment documents signed by the dismissed person himself, indicating that he received payments in accordance with the law.

Dismissal due to staff reduction in the Labor Code of the Russian Federation - how to register?
Labor Code: dismissal due to reduction
Dismissal due to staff reduction. nuances. how to behave correctly.
Dismissal due to staff reduction in 2018: compensation, step-by-step instructions
Article 81. Termination of an employment contract at the initiative of the employer
Article 81 of the Labor Code in case of staff reduction

Important Federal Law of June 30, 2006 N 90-FZ) (see the text in the previous edition) e) violation of labor protection requirements by an employee established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (an accident on production, accident, catastrophe) or knowingly created a real threat of such consequences; (as amended by Federal Law No. 90-FZ of June 30, 2006) (see.

Attention

A higher qualification of an employee is confirmed, in addition to education and experience, by the presence of additional qualification characteristics(ability to work on a computer, knowledge of one or more foreign languages), knowledge of the specifics of work, improvement of the employee’s qualifications. Often, the personal qualities of the employee are also taken into account (goodwill, sociability, ability to quickly navigate in non-standard situations, sense of responsibility, etc.). These business qualities of the employee are confirmed by various documents, such as: characteristics, memos from the immediate superior, results of previously conducted certification, etc.

In the process of resolving the issue of the right of advantage to remain at work, one should be guided by Article 179 of the Labor Code, which states that the fact of remaining at the same (former) job has an advantage.
Dismissal due to staff reduction in the Labor Code of the Russian Federation - how to register? Federal Law of June 30, 2006 N 90-FZ) (see the text in the previous edition) b) the employee’s appearance at work (at his workplace or on the territory of the employer organization or facility where, on behalf of the employer, the employee must perform a labor function) in state of alcohol, drug or other toxic intoxication; (paragraph “b” as amended by Federal Law No. 90-FZ of June 30, 2006) (see text in the previous edition) c) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with performance of his job duties, including disclosure of personal data of another employee; (as amended by Federal Law No. 90-FZ of June 30, 2006) (see.
In this case, the employee is issued a work book, is paid a salary for the days worked in the last month of work and compensation for unused vacation days (depending on the time worked since the last vacation). The most important thing is for the employee, in accordance with Art. 178 of the Labor Code of the Russian Federation, severance pay is paid. Its amount is not less than the average monthly salary, but according to an employment contract or collective agreement with employees, the benefit can be increased.

If an employee is registered with the labor exchange after dismissal, but is not employed, the former enterprise continues to pay him the average monthly salary for two months (but with the deduction of the severance pay already received).
If the employee agrees, he can resign due to reduction before the expiration of the two-month period.

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

Preparing for downsizing

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

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

Notify subordinates about this 2 months in advance;

Offer workers other vacancies that are available in the organization;

Notify employment authorities within the period specified by law.

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

Laying off due to redundancy is expensive

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

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

Notification

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

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

The redundancy notice looks like this:

00.00.00 _______________

Dear __________________ (employee’s full name)!

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

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

Sincerely, Director of LLC ________________ (signature transcript).

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

Payments

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

Salary for the entire period of work.

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

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

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

Right to keep your job

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

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

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

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

Got sick while exercising or another serious injury in this organization;

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

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

Paperwork

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

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

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

Inadmissible moments

At a time when there is a layoff at work, it is unacceptable to accept new people into existing vacant positions. It will be serious violation on the part of the manager, since he must offer these vacant positions only to persons who are at risk of dismissal on this basis. Level of education of workers values in in this case does not have.

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

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

Contacting employment authorities

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

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

Job search

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

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

A good job after a layoff will most likely go to someone who has great experience in his profession and is intensively searching for a new vacant position.

Illegal reduction

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

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

Arbitrage practice

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

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

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

It follows from the court decision that if there is a reduction in staff at work, the citizen subject to it must be offered another available position. In this case this was not done. In addition, there was no staffing table indicating a reduction in this profession. In this regard, the judicial authority satisfied the latter’s claim and reinstated him at work, in addition, recovered from the employer sum of money for compensation for moral damage.

In case of violation of norms labor legislation An illegally dismissed person has the right to reinstatement. The reduction and subsequent termination of the employment relationship in this case can always be appealed through the courts.