When layoffs are made, it is not easy to fire an employee. The personnel officer has to prepare a whole package of documents, because. this is a complex event. omission of some milestone it will entail recognition of the illegality of the dismissal. The Retrenchment Order is the main document in this package.
Downsizing and downsizing are practically different measures. With a reduction in staff, a profession, a position in an enterprise is excluded, and with a reduction in the number of employees, the profession (position) remains, and the number of staff units performing the work becomes smaller. There may be a third option - the staff is reduced and at the same time the number. The form of the order is arbitrary or according to a template. In it, the head informs about the holding of regular events or changes in the staffing table. The word "ORDER" is written in the center of the line in capital letters, it is assigned a number. The next line indicates the place and date of issue of the order. Next, you should write about the reason for issuing the order. In the next main part of the order, it is recommended to list the reduced units of the state, indicating the number, structural unit to which they refer, and the effective date of the order.
Download the documents on the site:
The entire package of documents on the reduction is prepared when at least two months are left before the appointed deadline for the dismissal of staff units. At the same time, all released employees must be informed about this. Termination dates employment contract and staff cuts are the same. If the staff unit is reduced, the employee cannot perform job duties. After carrying out the whole complex of regular events, in conclusion, an order is written to dismiss the employee. Its basis is the T-8 form - an order to terminate the employment contract (Decree of the State Statistics Committee of the Russian Federation dated 05.01.04 No. 1). The order form and the rules for its execution can be found in legal reference systems or on our website in the article "". All the main details of the T-8 form are filled in: the number and date of issue of the order, the name of the unit and position of the dismissed person, his full name, details of the terminated employment contract. In paragraph "Reason", indicate that the reason for dismissal is "reduction of the staff of the organization." Enter all the details of the documents related to the dismissal in a special column: an order to reduce staff, notification of an employee of the enterprise about it, a written offer to him of an existing vacancy (a message about his refusal is attached).If necessary, the employer may decide to reduce the number or staff units. To avoid litigation with dismissed employees, a certain reduction procedure must be followed.
Maria Blagovolina,
Senior Associate at Allen & Overy
Certain categories of workers who are subject to social protection and who cannot be reduced: pregnant women; women with children under the age of three; single mothers raising a child under the age of 14 (a disabled child under 18) (Article 261 of the Labor Code of the Russian Federation). It is also impossible to reduce an employee during his disability or vacation (part 6 of article 81 of the Labor Code of the Russian Federation)
A vacancy is a position provided for in staffing company, for the performance of work on it, an employment contract has not been concluded. That is, a position is not considered vacant if it is actually occupied by an employee, but he is on maternity leave, on parental leave, or temporarily transferred to another position. This is due to the fact that in this period the employee retains his workplace(Position in the staff list).
Thus, logically, the employer is obliged to offer so-called permanent vacancies. However, there is no direct prohibition in the legislation on the offer of temporary vacancies to employees who have been made redundant. That is, the employer can offer employees and temporary vacancies, while they need to conclude a fixed-term employment contract - for the duration of the absence of the previous employee. It should be noted that the practice of the courts on this issue is not unambiguous (decisions of the Moscow City Court dated 07/01/2010 No. 33-19668, St. Petersburg City Court dated 08/30/2010 No. 33-11908).
If an employee who has been made redundant writes consent to early dismissal, the employment contract with him can be terminated before the expiration of a two-month period. This employee should be paid additional compensation, the size of which depends on the time remaining before the expiration of the two-month notice period (part 3 of article 180 of the Labor Code of the Russian Federation).
At the same time, an employee may quit not due to redundancy, but at his own request (Article 80 of the Labor Code of the Russian Federation). In this case, the employer is not obliged to pay compensation to the employee related to redundancy dismissal (Article 178 of the Labor Code of the Russian Federation).
Footnotes:
1 st. 81 of the Labor Code of the Russian Federation
2 tbsp. 179 Labor Code of the Russian Federation
3 art. 179, 180 of the Labor Code of the Russian Federation
4 tbsp. 394 of the Labor Code of the Russian Federation
5 st. 180 of the Labor Code of the Russian Federation
6 h. 3 tbsp. 80, part 1, art. 180 of the Labor Code of the Russian Federation
7 p. 2 art. 25 federal law dated 19.04.1991 No. 1032-1
8 art. 178 Labor Code of the Russian Federation
9 approved. fast. Goskomstat of Russia dated 05.01.2004 No. 1
One of the grounds for terminating an employment contract at the initiative of the employer is a reduction in the number or staff of the company's employees 1 . Before layoffs, the personnel department and company management need to decide in advance whether there will be a reduction in staff or only in numbers.
Downsizing is a reduction in the number of staff members for a particular position. For example, instead of seven analysts, four remain on the staff list. Reduction of staff is a complete exclusion from the staff list of some positions. For example, the position of an analyst is completely excluded from the staff list.
Which option should an employer choose?
Despite the fact that the Labor Code provides for the same amount of guarantees and compensations for employees subject to dismissal due to a reduction in the number and staff, in practice the situation looks different.
In the event of a reduction in the number, the question of the pre-emptive right to remain at work 2 inevitably arises. The employer needs to choose from several employees with the same positions those who will have to be fired, and this choice must be justified. Of course, the Labor Code clearly states that preemptive right to leave at work (with a reduction in both the number and staff) is provided to employees with higher labor productivity and qualifications. However, most practitioners are inclined to believe that in the event of a reduction in staff, the pre-emptive right does not apply. After all, all employees with a selected full-time position are being reduced, that is, the employer does not have to choose which of the employees to leave and who to fire.
Judicial practice also proceeds from the fact that when reducing staff, the pre-emptive right is not taken into account when offering vacant positions. In this regard, from the point of view of the risks of litigation with dismissed employees, a redundancy procedure is a more reliable option.
We comply with the dismissal procedure
When reducing employees, it is important to correctly carry out all procedures and draw up documents 3. Violation established order may lead to the fact that the dismissed person will have to be reinstated and paid for his forced absenteeism 4. The court can reinstate an employee dismissed for redundancy, even if the employer made errors of a purely technical nature during the paperwork. The procedure for reducing the number or staff of employees consists of several stages.
Reduction Order
First of all, the head of the company issues an order to reduce the number or staff, which indicates the positions to be reduced. The same or a separate order must approve the new staffing table (with the changes that resulted in the reduction).
Active LLC in 2011 rented a building for an office in which it conducted its activities. In 2012, the management decided to reduce the rental costs due to the unstable financial situation of the company. Since February 2012, Aktiv LLC has been renting half of the building, in connection with which the head decided to reduce the number of cleaners (from two to one).
A downsizing order was issued (see below).
ORDER #2
on downsizing
Due to the decrease in the total area of rented premises for the office of Aktiv LLC
I ORDER:
1. To exclude from May 2, 2012 from the staff list of Aktiv LLC a staff unit by position:
2. Head of the personnel department Kalashnikova A.L. in the manner prescribed by the current labor legislation: notify the employee Maevskaya O.G. about the upcoming dismissal to reduce the number; report to the employment service authorities data on the upcoming release of the employee; prepare a list of vacant positions for the proposals of the released employee.
3. Approve the staffing table of March 1, 2012 No. 05-SHR and put it into effect on May 2, 2012.
Acquainted with the order:
Head of the personnel department Kalashnikova A.L. Kalashnikov
Employee notification
About the upcoming dismissal due to a reduction in the number or staff of employees must be warned in advance - personally and against signature at least two months before the dismissal 5 . If the employee refuses to put a mark on receipt of the notification, you need to draw up an act in front of witnesses (at least two people), which will be confirmation of the fact of the notice of dismissal.
The head of Aktiv LLC decided to eliminate the position of "web application developer" in order to reduce labor costs in the company. Startsev I.P. will be dismissed due to staff reduction on 02.05.2012. The personnel service hands him a notice against signature (see below), which Startsev I.P. must sign, 03/01/2012 (at least two months before the date of dismissal). At the same time, Active LLC has a vacancy for a web designer, and it was offered to Startsev I.P.
Notification
about the upcoming dismissal due to the reduction of the staff of the organization
Dear Ivan Petrovich! In connection with the implementation of measures to reduce the staff of employees, your position "web application developer" from May 2, 2012 will be reduced.
According to part 1 of article 180 Labor Code Russian Federation You are offered the following job (vacant position) at Aktiv LLC, corresponding to your qualifications: web designer.
In accordance with Part 1 of Article 178 of the Labor Code of the Russian Federation, you will be paid severance pay in the amount of your average monthly earnings, as well as you will be kept average earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).
Reason: Order No. 12 dated March 1, 2012.
Director Olkhin I.D. Olkhin
Acquainted with the notice
Startsev I.P. Startsev 01.03.2012
Job offer
Employees must be offered vacant positions available to the employer at that time, to which they can be transferred 6 . This must be done not once, along with the notice of dismissal, but several. Employees to be made redundant must be offered every job that appears in the company during the notice period. Based on the practice and position of the courts, we recommend that employees who are subject to redundancy be informed of vacancies three times: together with the notice, one month after reading the notice and on the day preceding the last working day.
Please note that it is necessary to offer not only a vacant position or a job corresponding to the qualifications of the employee, but also a vacant lower position or a lower-paid job. At the same time, the employer is obliged to offer the employee all the vacancies that meet these requirements that he has in the area. An employer is obliged to offer vacancies in other localities only if this is expressly provided for in a collective or labor agreement.
If the employer conducts a reduction in the number or staff, he should not place advertisements for the search for candidates for such positions. We also recommend that you do not re-enter the position in the staffing table for at least six months after the completion of the reduction procedure. Otherwise, employees have a chance to successfully challenge the dismissal and reinstate their jobs, proving that there was no actual reduction in the number or staff.
Employment Service Notice
The employer is obliged to report the reduction in the number or staff to the employment service 7 . This must be done in writing no later than two months before the dismissal of employees. If the decision to reduce the number or staff of employees can lead to mass layoffs - no later than three months before the start of the relevant activities. In an appeal to the employment service, the position, profession, specialty and qualification requirements to them, the conditions of remuneration of each individual employee. Criteria mass layoffs are determined in sectoral and (or) territorial agreements.
On the final stage downsizing or staffing procedures, it is necessary to pay compensation to laid-off employees who did not agree to vacancies and will not continue to work in the company in other positions. Employees need to pay a severance pay in the amount of the average monthly earnings and keep the average earnings while the dismissed person is looking for work (but not longer than two months from the date of dismissal) 8 . You also need to issue orders to terminate employment contracts in the form of No. T-8 9 and make entries in the work books of dismissed employees. The entry will look like this: “Fired due to a reduction in the number (staff) of employees of the organization, paragraph 2 of part 1 of article 81 of the Labor Code Russian Federation».
The downsizing must actually take place. This fact is confirmed by the submission to the court of the staffing table before the reduction procedure and after its completion (after the reduction, the new staffing table approved by the order should be in force). Judicial practice proceeds from the fact that the right to determine the number and staff of employees belongs to the employer. Although the employer is not required to prove the rationale for the decision to reduce staff, it is recommended to prepare a feasibility study. The presence of such a document will strengthen the employer's position in court and refute the employee's arguments that the reduction was far-fetched. Often, employees bring printed notices to the court stating that during the downsizing period, the company was looking for employees for the positions being reduced. Such evidence may indirectly confirm the groundlessness of the reduction procedure, therefore I recommend that you refrain from publishing vacancies for positions being reduced until the employee is fired and in the next 2-3 months.
The moment of approval of the new staffing table with a reduction in the number and staff of employees 05/29/2018
Sometimes employers begin to notify employees about the reduction in the number and staff before the adoption of a new staffing table, before the issuance of an order to reduce the number and staff. The management plans to carry out a “downsizing”, has already drawn up a draft staffing table and knows who to fire. Therefore, it begins to warn employees, to offer vacancies. This is where a fatal mistake can be hidden. In the event of a dispute, the court may consider that there is no reduction in the number and staff (since there is no new staffing table), and workers are fired on this basis illegally. And laid-off workers can be reinstated. At the same time, the staffing table adopted the next day after the dismissal of the “reduced” will not save the employer.
How will be correct? That's right - first issue an order to reduce the number and staff of employees, approve a new staffing table or changes to the previous one (and, in our opinion, it is quite acceptable to establish by order that the new staffing table is approved immediately, and is put into effect from a later date) and only then start notifying employees, the trade union, the employment service, offering vacancies, etc.
Consider this important detail!
“... Within the meaning of the provisions of paragraph 2 of part 1 of article 81 of the Labor Code of the Russian Federation termination of an employment contract due to a reduction in the number or staff of an organization is lawful if: upon termination of employment relations, a reduction in the number of employees or staff in an organization actually took place; the employee refused to be transferred to another job or the employer did not have the opportunity to transfer the employee, with his consent, to another job in the same organization that corresponds to his qualifications; the employee was warned in advance, but not less than 2 months before the dismissal, about the upcoming dismissal and if the elected trade union body participated in the consideration of this issue; the employee did not have the preferential right to remain at work ...
The circumstances of the actual (real) reduction in the number of employees or staff must be confirmed by an order to reduce the number or staff of employees and a new staffing table. At the same time, the new staffing table must be approved before the start of measures to reduce the number or staff of the organization's employees. If we are talking about reducing the number or staff of employees, then it is necessary to issue an order “On changing the staffing table”. After that, an order is issued “On approval of the list of abolished and out-of-staff posts in connection with the introduction of a modified staffing table ...
In the staffing table approved by DDMMYY, there is a staff unit of a senior duty officer in the regime, which was occupied by K.
Evidence that any organizational and staffing measures with the introduction of changes in the new staffing table from DDMMYY with the exclusion from it of the staff unit of the senior duty officer in the regime occupied by the plaintiff has not been presented by the employer ... "(Appeal ruling Supreme Court Republic of North Ossetia-Alania dated May 16, 2018 in case No. 33-728/2018).
488 p. This book discusses in detail popular species dismissals: dismissals by agreement of the parties, in connection with the expiration of the employment contract, at the initiative of the employee ( own wish), dismissals to reduce the number or staff of employees of the organization, for repeated failure to fulfill labor duties, for absenteeism.
The book contains many examples of judicial practice, tips, hints, difficult questions, as well as sample documents and step-by-step instructions.
Question: The organization plans to reduce the number of employees. When should staffing be approved: before notifying employees of staff reductions or after two months? How soon after the reduction of positions and the dismissal of employees can these positions be added to the staff list again?
Answer:
The new staffing table must be approved before the start of the reduction activities. The period during which the employer is not entitled to re-introduce a previously reduced position into the staff list is not established by law.
Rationale: About 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 signed at least two months before the dismissal (part 2 of article 180 of the Labor Code of the Russian Federation). At the same time, the new staffing table must be approved before the start of the reduction measures.
It does not follow from the provisions of labor legislation how the moment of dismissal of laid-off workers and the moment the new staffing table is put into effect should correlate with each other. In our opinion, when employees are dismissed due to a reduction in the number or staff of the organization, a new version of the staffing table should be put into effect on the day the employees are dismissed (see the Appeal ruling of the Volgograd Regional Court dated 06.09.2012 N 33-7811 / 2012).
However, there is a position that the new staffing table may come into force the next day after the dismissal of the relevant employees (indirectly confirmed by the Appeal ruling of the Tula Regional Court dated November 7, 2013 in case N 33-2675).
The period during which the employer is not entitled to re-introduce a previously reduced position into the staff list is not established by law.
The employer, taking into account the characteristics of the activities and needs of the organization, the technology of work, the demand for manufactured products, plans for further development and other factors, independently determines the structure and number of employees of the organization. That is, if necessary, the employer has the right to make changes to the staffing table at any time, entailing both a decrease in the number of positions (specialties, professions) or staff units required by the employer, and their increase.
In paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, it is indicated that, according to Art. 8, part 1, art. 34, parts 1 and 2 of Art. 35 of the Constitution of the Russian Federation and par. 2 hours 1 tbsp. 22 of the Labor Code of the Russian Federation, the employer, in order to effectively economic activity and rational property management, independently, under its own responsibility, makes the necessary personnel decisions: selects, places, dismisses personnel. That is, if the employer once decides to reduce the number (staff), then later, when he needs additional labor force he can re-introduce to the staff list previously excluded positions (specialties, professions) or a staff unit. The legislation does not establish a limiting period before the expiration of which the employer is not entitled to introduce a previously reduced position into the staff list.
At the same time, it should be borne in mind that dismissal due to a reduction in the number (staff) of employees cannot be used solely as a way to get rid of employees objectionable to the employer. So, in the Ruling of the Constitutional Court of the Russian Federation of December 17, 2008 N 1087-O-O, it is indicated that the termination of an employment contract on the basis of paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation is recognized as lawful, provided that the reduction in the number or staff of employees actually took place (clause 2.3). The Court also draws attention to the fact that it is impossible to completely exclude the possibility of abuse of the right by an employer who uses a reduction in the number of employees to dismiss a specific person. The validity of a reduction in the number or staff of employees is established, as a rule, by comparing the previous and new edition staffing, but not limited to this.
In the event of a dispute, the employer is obliged to prove that the change in the staffing table was caused by any objective economic, technical, organizational or other factors.
The introduction of the abolished position into the staff list and the acceptance of a new employee for this position a short period of time after the dismissal of the previous employee, in our opinion, may indicate that the reduction in the number or staff did not actually occur. In our opinion, even if a newly hired employee will occupy a different position, but perform a labor function similar to the labor function of a dismissed employee, termination of the employment contract under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation may be declared illegal. At the same time, the term for the employee to apply to the court to appeal the dismissal is one month from the date of delivery of a copy of the dismissal order to him or from the date of issuance work book(part 1 of article 392 of the Labor Code of the Russian Federation). At the same time, since the dismissed employee can find out about the restoration of the position that he previously held in the staff list only after the expiration of the specified period and since only the court establishes circumstances indicating a violation of the rights of this employee, which he did not know and could not know at the time handing him a copy of the dismissal order or the issuance of a work book, the court, considering in order h. 3 Article. 392 of the Labor Code of the Russian Federation, the corresponding petition is not entitled to refuse to restore the missed procedural period without examining the actual circumstances of the case, which may serve as the basis for such restoration (clause 2.3 of the Ruling of the Constitutional Court of the Russian Federation of December 17, 2008 N 1087-О-О).
Progress does not stand still and human brains are being actively replaced by intelligent technologies that completely or partially nullify the benefit of a person in some positions. In the article we will talk about the reduction of a position in the staff list, consider the procedure and reasons.
In addition to progress, there is also a macroeconomic impact, a crisis, cost cuts and other factors that may push the employer to optimize the number of employees. Some professions have long been a thing of the past, which means that at present, any company may face a problem of how to legally reduce one or another position.
It is always very difficult for any leader or employer to inform his subordinates about the prospect of an upcoming layoff. This is connected both with personal (psychological) aspects of the relationship between the leader and subordinates, and with legal ones. Labor law in our country protects the rights and freedoms of workers to the maximum extent possible. Therefore, no organization can simply cut staff without fulfilling all its obligations under the law.
If the dismissal is unavoidable, the employer must comply with the entire procedure for reducing positions as correctly as possible. Any violation can only worsen the position of the employer. The general algorithm for reducing a position in the staffing table looks like this:
Russian legislation also provides for a number of legal regulations for employees who, for one reason or another, are classified as privileged citizens. This means that, other things being equal, these people should have advantages over the rest of the citizens when the decision is made by the leaders and the labor commission on when exactly whom will be laid off. These exempt categories include:
Before starting the procedure, managers decide how the reduction or change in the existing staffing will be carried out: as a complete abolition of the existing position or the reduction of several units in one position.
| State | population |
| Complete abolition of the position with all staff positions | Reduction of official units by one position |
| The most optimal procedure for the employer, as it reduces the risks of litigation. And for employees who show the greatest professional success, the manager can offer other job positions. | For the employer, this procedure will be quite complicated, because it entails a choice between employees holding the same position. The privileged categories of citizens and those who show the greatest professional success will have an advantage, which is quite controversial and can lead to litigation by laid-off employees. |
Any change in the framework of the organization's activities must be accompanied by the execution of all appropriate documents.
In order to somehow compensate for the inconvenience caused to the employee in accordance with the reduction in position and the subsequent job search, the employer is obliged to pay severance pay in the amount of the average monthly salary, and also keep his average monthly salary for the next two months. If an employee applied to the employment service within two weeks from the moment of dismissal, he has the right to apply for another compensation for the third month after dismissal if he does not find a job for a given period of time.
In some cases, the payment of compensation can be extended up to six months, but such a decision can only be made by the employment service, in which the employee must be registered.
In order to resolve the current situation, the employer must offer its employees the existing this moment vacant positions. Of course, it is better if these are permanent positions, but in some cases the manager may offer to take temporarily vacant vacancies (if the employee is in maternity leave) under a fixed-term employment contract. This is in no way prohibited by law and will give the employee more time to look for work.
Mistake #1. Mistakes in the process of demolition
The manager must always remember that when even small technical errors are made in the documents drawn up during the reduction of the position and subsequent dismissal employee, the court will decide in favor of the employee. And this means that penalties will be imposed on the organization, they will be obliged to pay material compensation for moral damage and reinstate the employee in the staff of the organization.
Mistake #2. Dismissal of employees who are on paid leave, sick leave or parental leave.
The employer does not have the right to reduce the position and dismiss an employee who, according to objective reasons is currently absent from his workplace. This is a very serious violation of the rights of the worker. After applying to the court by an employee whose rights have been violated in this way, the organization will be obliged to pay moral compensation, reinstate in office, penalties will be imposed on the organization and the CEO who signed the dismissal order.
Question number 1. What benefits and preferences exist for workers living and fulfilling their labor activity in the far north?
In the conditions of the Far North, there are various allowances and coefficients adopted at the legislative level local authorities increasing the average earnings of such workers. This also applies to the payment of compensation upon dismissal of an employee. At the legislative level, the period for paying severance pay has been extended by one month, that is, it has been extended to three months.
Question number 2. If there were vacant positions in the organization, but the employer did not offer to take them to the employee whose position is subject to reduction. Is this grounds for going to court?
Yes, any violation of the rights of employees is the basis for filing a lawsuit. Within two months, the employer is obliged to notify the employee of new vacancies And this is not a one-time event, but an ongoing process. Moreover, each such action must be formalized by special acts in which the employee either agrees or refuses to take the position offered to him.
Question number 3. If the employer did not notify the employee two months in advance, can the employee claim additional compensation?
Yes, the legislation provides for such a scenario. If the employer violated due date for which he had to notify the employee, the organization is obliged to pay additional compensation in the amount of two average monthly wages in excess of what he is entitled to when reducing.
