This method of terminating an employment contract is especially distinguished from others. It can rightfully be called one of the most protecting the rights of the employee, not the employer. Although this option is the most laborious.
A clear statement of the differences between downsizing and staff reduction the law does not.
In practice, there is only one difference: when the number is reduced, the position is not excluded from the staff list, only the number of persons occupying it changes (there were 5 managers, 2 will remain).
And if the staff is reduced, then the position is generally removed from the schedule (for example, the position of an accountant for materials is excluded, his duties will be performed by a payroll accountant).
It is possible to make a reduction in employees only when the position is already absent from the staff list. Thus, you can make changes to the already existing schedule, or develop another one, taking into account all the changes.
The new version of the schedule is approved by the relevant order, which also explains why the need for reduction arose, in what period it will be carried out.
All employees of the company or enterprise should be familiar with this order.
Reducing the number of employees or staff - This is entirely the initiative of the management of the company or enterprise. However, there are benefits for certain categories of employees. More on this will be discussed below.
In general, when reducing, a certain rule applies, which is reflected in the legislation: first of all, those employees who are less qualified and have low labor efficiency indicators are fired. In practice, these are most often employees with the least work experience.
The following employees enjoy the advantage of staying at work:
So, it is unacceptable to dismiss by reduction:
This list is not exhaustive; the full list is given in the legislation.
The law does not directly establish the reasons for layoffs. It is the right of the employer to make a reduction if economic conditions require it. But if a dispute arises, the court has the right to check how good the reasons were, whether the reduction was reasonably carried out.
Typically, serious circumstances include:
Their observance primarily concerns the employer, if he does not want to pay fines and compensation to illegally dismissed employees in the future.
Dismissal by reduction is carried out in the following order:
Many people are poorly versed in the norms of the law, which sometimes becomes convenient for unscrupulous employers. Taking advantage of this situation, they often violate the rights of employees and do not make all the due payments. To prevent this from happening, it is worth considering this point in more detail.
What does the employee have the right guaranteed to him by law:
From the above examples, it can be seen that the state protects citizens from layoffs at the whim of the leadership, makes it possible to challenge the dismissal in court if it is illegal.
Table 1. Payment procedure
Important information : any delay in payments is a violation of the law!
If this order has been violated, any employee can apply to the court, demanding:
At the same time, you can contact the prosecutor's office. Usually scared employers pay everything. If this is the case, your claim can be dropped.
The statute of limitations for applying to these authorities is 3 months from the date of dismissal.
In any case, you need to carefully study your rights and learn how to protect them.
We will conduct a small comparative analysis of the two types of dismissal. Since quite often employees ask such a question to specialists, it is worth paying attention to its consideration. And the results are presented in the form of a table.
table 2.Comparative analysis of types of dismissal
How profitable it is to quit, everyone decides for himself. You can rely on the criteria given in the table, you can not take them into account. In any case, you need to focus on the situation that has developed for a particular person.
This list contains the most typical and frequently occurring errors. Some of them are interpreted by the legislator as illegal dismissal and have serious legal consequences for an irresponsible employer.
Summing up, we can say that layoffs due to redundancy can affect any person. No one is immune from this, especially if there is a difficult economic situation across the country.
In such a situation, it is important to know your rights and make sure that they are not violated. And if there are certain difficulties, seek help from competent specialists.
The employer, reducing the staff, takes such an unpopular and economically disadvantageous step for objective reasons. The main goal of any economic entity is the most optimal organization of the production process. This requires increasing the efficiency of the organization and minimizing costs. Realizing its main goal, the enterprise can make changes in the organization of labor and production. Thus, the reduction in the staff of the enterprise is caused by the impossibility of maintaining the terms of employment contracts with employees due to the objective nature of intra-organizational changes.
These changes can have both an internal reason (reduction of costs and intensification of production) and an external one: a change in the price environment, devaluation of the national currency, a decline in demand for manufactured goods or services. The relevance of the topic of reducing employees is increasing at the present time, which is characterized by the whole complex of the above negative factors of the external environment of the enterprise.
An employee of any organization is relatively protected from the arbitrary actions of the employer by legally established procedures that the employer must follow in the event of a reduction in staff. Deciding on the reduction procedure, the employer incurs financial losses and receives numerous organizational problems.
Setting a part-time day or week
In cases where the production process requires a change in the terms of the employment contract with the employee, which may lead to a reduction in the staffing table, a possible alternative to the dismissal of employees is to establish part-time or weekly hours. Thus, the legislator gives guarantees to employees who may be potentially fired due to layoffs to continue working at their enterprise.
The employee must write an appropriate statement if he agrees to:
Staff reduction
The actual reduction of people in the enterprise must necessarily be preceded by a reduction in staffing. The decision to reduce should be justified by the fundamental impossibility of carrying out the production process in accordance with the existing staffing table.
The employer is obliged to think carefully about the structure of the new staffing table, since he will not be able to restore the deleted staff units.
The expediency of the decision to reduce the staffing should outweigh all other benefits received by the employer from the released jobs.
Reduction Notice
If the decision to reduce the staffing is made, then:
On the notification, the employee must put a mark on reading with the date and signature. Notification of an employee can occur at any time, but not less than two months before the actual dismissal. For seasonal workers, as well as those working under an employment contract concluded for a period of up to two months, this period is reduced to 7 and 3 days, respectively.
The employer is also obliged to notify the employment service of the dismissed employees.
Offer to transfer to another job
The employer is obliged to use all possible means to prevent the dismissal of the employee. One such means is to offer an employee whose position has been made redundant to move to another job in the same organization or in other organizations owned by the same employer. The proposed vacant position must correspond to the qualifications of the employee, his health and capabilities, but may be lower paid.
The employee has the right to agree with the offer or refuse it by writing a statement about it.
Preemptive rights in case of reduction
When deciding on specific employees to be made redundant, the employer is limited by statutory directives distinguishing between employees who cannot be made redundant in principle and those who have the right not to be made redundant.
It is forbidden to dismiss the following categories of employees due to staff reduction:
The following categories of employees have the preferential right not to be dismissed in case of staff reduction:
The listed categories of employees are enshrined in the Labor Code. In addition to them, in local regulations, the employment contract may stipulate other categories of employees who have the pre-emptive right not to be dismissed when the staff is reduced.
Severance pay is compensation to an employee for the early termination of an employment contract. The terms and amount of the severance pay may be reflected in the employment contract. Otherwise, the general rules enshrined in the articles of the Labor Code apply.
Severance pay is intended to provide financial support to the dismissed employee in the first month after the dismissal, as well as in the month following it, if the employee is not employed. In the first case, the severance pay is received on the last working day of the employee. In the second case, at the place of the former job, the dismissed employee is required to present a work book confirming that the person does not have a job at the moment.
If it is impossible to find a job, benefits are paid for the third month after dismissal if there is a certificate of registration with the employment authorities and a certificate confirming the fact of non-employment at the time of applying for benefits.
There are categories of workers who can count on the payment of employers' benefits within a 3-month period upon presentation of a work book confirming the absence of employment:
In addition, the Labor Code provides for a reduction in severance pay in the event of dismissal due to staff reduction to two weeks average earnings for the following categories of workers:
Nowadays, you need to be legally savvy in a variety of issues, especially when it comes to labor relations. What is important to know if you decide to quit or get laid off? about it with head of the legal direction of the Center for Social and Labor Rights Sergey Saurin.
The leader has no right to interfere. You can decide to quit at any time, and you do not need to agree on leaving with your employer. The only restriction is that according to Article 80 of the Labor Code of the Russian Federation, you are obliged to notify your management in writing about leaving no later than two weeks in advance. A letter of resignation is just a form of warning, and it is important for you that you have proof in your hands that the employer received it. To do this, you can ask a person authorized to receive documents to sign the receipt of your application on a copy of this application (you keep a copy). If for some reason you are refused to sign on receipt of the application, you can send a telegram to the employer with acknowledgment of receipt - this will also be a notice of resignation in the proper form.
After the two-week notice period has expired, you will have the right not to go to work and demand a dismissal. By agreement with the employer, you can terminate the employment contract even before the expiration of the two-week period.
The current Labor Code in Article 127 provides for two options for using leave upon dismissal:
Voluntary dismissal, according to the current Labor Code, does not imply the payment of any compensation to the employee. However, in a situation where you generally do not mind terminating the employment contract, but do not want to write a statement of your own free will, you can offer the employer to issue a dismissal by agreement of the parties. In fact, this is the same “conflict-free” basis for dismissal, but here you can bargain. The law does not restrict you in choosing the possible terms of the dismissal agreement, everything depends only on your negotiating capabilities. You can try to convince the employer to pay you a certain amount of cash compensation, or ask for “compensation” in another form (for example, good recommendations).
The agreement on termination of the employment contract must be drawn up in writing in two copies. Often it is drawn up in the form of an additional agreement to a terminated employment contract. From the moment it is signed by the parties, it is mandatory for both the employee and the employer.
Article 179 of the Labor Code of the Russian Federation stipulates that employees with higher labor productivity and qualifications have the preferential right to be left at work during redundancy measures. All other possible criteria (including the length of service) are applied only in the case of equal labor productivity and qualifications of employees.
If you have reason to believe that the employer has chosen you unreasonably, you should appeal the dismissal in court. Unfortunately, it will not be possible to appeal against the actions of the employer before the layoff (dismissal or transfer, depending on the availability of vacancies), since the notice of reduction in itself does not violate your rights.
In court, you have to prove that your productivity and qualifications were higher than those of your colleagues in the position (or that you had a preferential right under other criteria, subject to equality of productivity and qualifications). Documents, testimonies or any other evidence of a position can be used as evidence. Evidence is better to start preparing in advance, even before the reduction has occurred.
In accordance with Article 180 of the Labor Code of the Russian Federation on the upcoming dismissal due to a reduction in the number or staff of the organization's employees, employees are warned by the employer personally and against signature at least two months before the dismissal. During these two months, the employee continues to work and receives wages in the general manner.
After two months, already immediately upon dismissal, in accordance with Article 178 of the Labor Code of the Russian Federation, the employer is obliged to pay severance pay in the amount of the average monthly earnings. This payment is considered to be the preservation of the employee's earnings for the first month after the dismissal.
If the laid-off employee does not get a job within the first month after the dismissal, the employer has an obligation to keep his average earnings for the second month after the dismissal. The average salary for the second month is paid to the employee in the second month (since upon dismissal it is not known when the laid-off employee will be able to get a new job). Moreover, if the employee gets a new job in the middle of the second month after the dismissal, then the old employer pays him the average salary only for that part of the second month during which the employee did not work.
If an employee is registered with the employment authority within two weeks after the dismissal for a reduction, and despite this, he could not get a new job within two months after the dismissal, the old employer retains his average earnings for the third month after the dismissal (payment rules the same as for the second month).
Article 180 of the Labor Code of the Russian Federation establishes the possibility of the employer and employee to agree to terminate the employment contract in connection with the reduction before the expiration of the two-month warning period. In this case, the employer is obliged to pay the employee a lump sum (upon dismissal) in the amount of the average earnings for the entire period remaining until the expiration of the two-month period, plus a severance pay in the amount of the average earnings for one month. Saving earnings for the second and third months after dismissal in this case occurs according to the general rule.
According to Article 31 of the Law of the Russian Federation "On Employment in the Russian Federation", the decision to grant unemployment benefits is made simultaneously with the decision to recognize a citizen as unemployed. In accordance with paragraph 2 of Article 3 of the Law on Employment, the decision to recognize a citizen registered in order to find a suitable job as unemployed is made by the employment service at the place of residence of the citizen.
We are talking specifically about the place of residence, and not about the place of registration (registration), therefore, in case of a refusal, you have the right to demand that the refusal be issued in writing and appeal against it in court or in a higher authority (employment department for the constituent entity of the Russian Federation).
Please note that registration at the place of stay and residence is only a method of registering citizens within the Russian Federation provided for by federal law, which is of a notification nature and reflects the fact that a citizen is located at the place of stay or residence, which cannot serve as a basis for restriction or a condition for the exercise of the rights and freedoms of citizens .
the employer has the right to determine independently. But setting out such a basis in a reduction order for a legal dismissal is not enough. Read the article about what could be the reason for the reduction.
Dismissal of an employee under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation (reduction of staff) will be lawful only if the reduction in staff or the number (or both) of workers actually took place. Let's explain the concepts of "downsizing" and "downsizing":
Not any change in the organizational structure of the enterprise is the basis for the dismissal of employees for reduction, since it may not lead to a reduction in the number or staff (for example, renaming and moving positions from one unit to another). The fact of the reduction must be confirmed by making appropriate changes to the staffing table, that is, it should be clear that staff units for certain positions or specific positions have been excluded.
Labor legislation does not define the goals and grounds for reducing the state or number of employees, and also does not oblige the employer to justify his decision to reduce.
Don't know your rights?
Indeed, the employer has the right to decide for himself how to place personnel in the enterprise in order to achieve the desired economic effect. The main thing during the reduction is the observance of the guarantees provided for by the Labor Code of the Russian Federation in relation to the dismissed employees. This is also confirmed by judicial practice (ruling of the Constitutional Court of the Russian Federation of December 18, 2007 No. 867-O-O, cassation ruling of the Amur Regional Court of June 1, 2011 in case No. 33-2509 / 11).
There can be many reasons for an employer to make a layoff. Let's list some:
The foregoing does not mean that the rationale for the relevant measures should not be indicated in the reduction order. On the contrary, it must be specified. At the same time, the employee’s mere disagreement with the rationale for the reduction (without additional arguments) is not enough to recognize the dismissal as illegal. But if facts are revealed that testify to the fictitious reduction, the court will reinstate the employee at work.
Often, employers use layoffs to get rid of objectionable employees, or simply do not follow the layoff procedure established by the Labor Code of the Russian Federation. Consider several situations that may arise as a result of neglecting the rules of reduction or attempts by the employer to circumvent the law:
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The employer's decision to make redundancies must be documented. In organizations, the issues of reduction can be attributed by the charter to the competence of the sole or collegiate management body. In the first case, an order is issued, in the second - a protocol. Individual entrepreneurs draw up the reduction of employees by order.
The reduction order must include:
As can be seen from the article, the specific grounds indicated by the employer in the reduction order are not significant in the context of the legality of the dismissal. When carrying out relevant activities, the employer should pay more attention to confirming the reality of the reduction.
Hello dear friends!
Today I have positive news, my friend called, who was laid off, remember? He passed the second stage of the interview and actually got a new job. I keep my fingers crossed for him and hope that everything works out in his favor. You and I have already touched on the topic of staff reduction several times, but the thought does not leave me that we have not done enough. Specifically, we haven't discussed the nuances of who can't be made redundant.
Taking advantage of people's ignorance of their rights, many employers act, to put it mildly, ugly, or rather, illegally. It is your responsibility as professionals and employees to know your rights and to share this information with other employees. Money is good, but you can't buy reputation.
Let's consider:
The topic is small and simple, but important for understanding and assimilation. I do not urge you to cram what is written below, but you need to read and understand, believe me, this information will come in handy more than once in your work and in life. Ready? Let's begin!
Sometimes a cut is inevitable. But even in this case, the employer does not have the right to lay off some employees. Who, when and why has special rights and "privileges" in case of downsizing?
We recently wrote about what rights an employee has if a company makes redundancies, and how these rights can be defended: What you need to know about layoffs due to redundancy? But some workers have special "privileges" when they reduce staff or headcount.
Simply put, the employer generally does not have the right to fire them for redundancy. True, the workers themselves are often unaware that they have any special rights. Therefore, before you get upset about the upcoming layoff, you first need to make sure that you really do not have any benefits, and the employer has the right to cut you.
Of course, each case is individual, and sometimes it is more profitable to “downsize”, look for a new job and receive financial compensation from the previous employer in parallel. But situations are different, and knowing your rights, in any case, is useful.
So, which employees are considered "irreducible" under Russian law? All of them are listed in the Labor Code.
By the way, not only individual positions, but also entire divisions, divisions, departments can fall under staff reduction. The employer has every right to do this. But, in any case, during the reduction, the rights of employees must be respected, and those who cannot be reduced must remain in the company. If it is planned to reduce the entire unit, then the "non-reducible" employees should be transferred to other departments of the organization.
The employer does not have the right to dismiss the following categories of employees due to layoffs:
If an employee belongs to any of these categories and was, nevertheless, fired on a reduction, reinstatement through the court is easy, one might say, almost “automatically”.
In addition to workers who cannot be laid off, there are also workers who have advantages over their colleagues. First of all, this applies to a situation where the employer is forced to cut one of two identical positions. For example, out of two accountants working with the “bank, cash desk” section, only one should remain. Whom to choose for reduction? It would seem that the choice depends entirely on the employer. But it is not so.
The Labor Code prescribes to the employer who he should “sacrifice” last. This information is contained in article 179 of the Labor Code of the Russian Federation. If there are two identical positions, then employees with higher labor productivity and higher qualifications should be left in the company.
What if the productivity and qualifications of employees are equal? In this case, the employer must take into account other factors. Of the two employees, one of which is subject to reduction, the right to remain in the organization has:
So, the Labor Code does not proceed from the fact that “in the face of layoffs” all employees are equal. There are employees who should not be laid off, as well as those who should be laid off only as a last resort. If you belong to one of these categories, you should not forget about your rights.
And if you are not among the “privileged” and you have every right to be laid off? In this case, the employer must pay the employees sufficient monetary compensation.
Source: http://www.zarplata.ru/a-id-32187.html
Before making changes to the staffing table, the manager must make a choice of whom he can and should leave in the workplace, and who will have to leave. The criterion for this is not only an indicator of efficiency, but legally defined norms. There are workers who cannot be fired by law, as well as those who have a preferential right to the workplace.
The following categories of citizens cannot be dismissed due to a reduction in the number and staff of employees (Article 261 of the Labor Code of the Russian Federation):
The following categories of citizens have the preferential right to a workplace during the reduction of employees of the organization (Article 179 of the Labor Code of the Russian Federation):
workers with higher labor productivity and documented qualifications (data on the fulfillment of production standards, on the quality of work, a diploma of higher professional education, obtaining a second education, having an academic degree, academic title, etc.)
with equal labor productivity and qualifications, the following have an advantage:
The following are considered disabled:
In addition, persons specified in federal laws have the preferential right to be left at work:
Two months before the dismissal, the employee must be warned against a receipt for the reduction of his position (part 2 of article 180 of the Labor Code of the Russian Federation).
If he refuses to read the written notice, it shall be sent to his home address by registered mail with the notice. It is also necessary to draw up an act of refusal to read the written notice. Subsequently, this will help the employer if the former employee goes to court with a lawsuit on the illegality of the dismissal procedure. The employer will be able to document that he did everything to comply with the procedure, and it was the employee who violated it.
The two main documents that launch the process of staff reduction must be drawn up at the first stage of this process. So it is necessary to issue an order to reduce the number or staff of employees, as well as to prepare and approve a new staffing table with the date of its entry into force after the end of the reduction procedure.
It is necessary to notify the employment service authorities and the elected body of the primary trade union organization in writing about the upcoming dismissal of workers no later than two months before the start of the relevant events. In case of mass dismissal of employees - no later than three months. It is necessary to indicate the position, profession, specialty and qualification requirements for employees, the terms of remuneration for each individual employee.
A dismissal is considered massive if:
Industry or territorial agreements may establish other criteria for assessing mass releases.
After the employer has informed the employee in writing about his future reduction, he must take measures to employ the employee. The Labor Code requires that each dismissed employee be given the opportunity to transfer to an existing job in writing (part 1 of article 180 of the Labor Code of the Russian Federation). This implies a transfer within one organization, however, the employer may assist in the transfer of the employee to another employer. Dismissal due to a reduction in the number or staff of the organization's employees is allowed if it is impossible to transfer the employee with his consent to another job (part 2 of article 81 of the Labor Code of the Russian Federation). Failure to comply with this requirement is a violation of labor law.
The employee must submit the refusal of the proposed position in writing. This will provide documentary evidence of his unwillingness to take the proposed position.
The positions proposed for internal transfer must be present in the new staffing table. It is mandatory to have approved job descriptions with a list of duties, and the terms of remuneration must also be approved.
If the company does not have a job that would match the qualifications of the employee, the employer can offer a lower position in the area. The employer is obliged to offer vacancies in other localities, if it is provided for by collective or labor contracts, or agreements.
If the former employee is a member of a trade union, then before terminating the employment relationship with him, it is necessary to send there a copy of the order and other documents that contain the rationale for such a decision. It is also worth sending a copy of the dismissal order to the union. It is advisable to carry out these actions after 1 month, with a massive reduction - after 2 months from the moment the employee was warned about the upcoming dismissal.
Elected trade union body, in accordance with Art. 373 of the Labor Code of the Russian Federation, considers this issue within seven working days from the date of receipt of the draft order and copies of documents and sends the employer its reasoned opinion in writing.
If the elected trade union body expressed disagreement with the proposed decision of the employer, it shall, within three working days, hold additional consultations with the employer or his representative, the results of which are drawn up in a protocol. If a compromise has not been reached as a result of consultations, the employer, after ten working days from the date of sending the package of documents to the trade union, has the right to make a final decision. It can be appealed to the relevant state labor inspectorate.
Observe a special procedure for certain categories of workers
Dismissal in connection with the reduction of heads (their deputies) of elected collegial bodies of primary trade union organizations (including within two years after the end of their term of office), elected collegial bodies of trade union organizations of structural divisions of organizations (not lower than shop and equated to them), not exempted from their main job, as well as employees under the age of eighteen years, in addition to the general procedure for dismissal, subject to the provisions of Art. 269, 374, 376 of the Labor Code of the Russian Federation.
It must be remembered that it is not allowed to dismiss an employee at the initiative of the employer (with the exception of the liquidation of the organization) during the period of his temporary disability and during his vacation.
Familiarization of each employee with the order of dismissal in connection with the reduction in the number or staff of the organization's employees is carried out against signature.
It is necessary to register the order in the Register of orders (instructions).
Calculation and payment of wages, severance pay (in accordance with Article 178 of the Labor Code of the Russian Federation) with all payments due to the employee takes place on the day of dismissal. Calculation of monetary compensation for all unused vacations (a note-calculation is required).
Upon termination of the employment contract in connection with the liquidation of the organization, or a reduction in the number or staff of the organization's employees, the dismissed employee is paid a severance pay in the amount of the average monthly salary. The dismissed person retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).
In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal. This may be due to the decision of the body of the employment service, if within two weeks after the dismissal, the employee applied to this body and was not employed by him.
In accordance with Article 140 of the Labor Code of the Russian Federation, upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee was absent on the day of dismissal, then payments must be received by him no later than the next day. In the event of a dispute about the amount of the amount due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the above period.
With the written consent of the employee, the employer may terminate the employment contract with him before the expiration of the two-month notice of dismissal. This is possible when the employer pays him additional compensation. Its size is calculated from the average earnings of the employee in accordance with the time until the end of the termination notice. (Part 3, Article 180 of the Labor Code of the Russian Federation).
Labor books of employees of the organization are filled in in accordance with the Rules for maintaining and storing labor books, approved by Decree of the Government of the Russian Federation No. 225 dated April 16, 2003 and Instructions for filling out work books (Appendix No. 1 to the Decree of the Ministry of Labor of Russia dated October 10, 2003 No. 69). The work book is issued to the employee on the day the employment contract is terminated.
