Sinusitis

Labor Code of the Russian Federation with comments abbreviation. Retrenchment of an employee - procedure and rules for retrenchment

Dear Dmitry,

Dismissal
due to a reduction in the number or staff of employees

IN
in accordance with paragraph 2 of part one of Art. 81
Labor Code of the Russian Federation, an employment contract can be terminated by the employer in connection with
reduction in the number or staff of employees of an organization, individual
entrepreneur.

IN
labor legislation there is no official explanation of what exactly is
reduction in numbers, and what is reduction in staff, and how are these concepts
correlate. In our opinion, population reduction should be understood as
reduction of staffing levels for a certain position while leaving the position itself
positions in staffing table, and under staff reduction - the liquidation of all
staffing positions for one or more positions. However, since the procedure
layoffs of workers both during headcount reduction and staff reduction
is the same, identifying the characteristics by which these categories differ does not have
practical significance.

Exception
from the staff list of vacant positions (staffing units) by reduction
the number (staff) of employees is not.

Procedure
reductions can be divided into the following stages.

1. Acceptance
the employer's decision to reduce the number (staff) of employees and approval
new staffing table.

2. Definition
circle of employees who will be affected by downsizing measures
(state).

3. Written
notice of the decision taken employment services and trade union (if any).

4. Personal
warning each employee whose staff position is subject to reduction about
upcoming dismissal and offering him another available job.

5. Accounting
reasoned opinion of a representative body of employees or obtaining
consent of such authority in cases provided for in Articles 39, 373, 374 and 405
Labor Code of the Russian Federation.

6. Design
dismissals of employees under clause 2
first st. 81 Labor Code of the Russian Federation in general procedure, established by Art. 84.1 Labor Code of the Russian Federation, with payment of all
amounts due.

Dismissal
in connection with a reduction in the number or staff of employees is legal when
compliance with the following conditions:

Reduction
number (staff) of workers actually took place, that is, in reality
In fact, the functional rights and responsibilities that constitute the
the content of the position being reduced, and not, for example, a simple rename
any of the positions being eliminated.

Constitutional
The Court of the Russian Federation in its ruling dated December 17, 2008 N 1087-О-О
confirmed the obligatory condition of the reality of the reduction, and at the same time
indicated that the employer cannot be limited in his rights subsequently
restore the abolished position in the staff list in order to implement
effective economic activity and rational property management,
but in such cases one cannot exclude the possibility of abuse of rights with
the employer's side using staff reductions for dismissal
specific person. And since in such cases the employee may find out about
reinstatement of the position he held in the staff list only after
after the expiration of the first part
Art. 392 of the Labor Code of the Russian Federation, the court has no right to refuse restoration
missed procedural deadline without examining the actual circumstances
cases that may serve as a basis for such restoration;

Dismissal
produced in compliance established by law order (clause 23 of the resolution of the Plenum of the Supreme Court of the Russian Federation
dated March 17, 2004 N 2).

point 2
or 3 parts of the first
of this article is allowed if it is impossible to transfer the employee from his
written consent to another job available to the employer (as a vacant
position or work corresponding to the qualifications of the employee, as well as vacant
lower position or lower paid job) which the employee can
carry out taking into account his state of health. In this case, the employer is obliged
offer the employee all available vacancies that meet the specified requirements
him in this area. Offer vacancies in other employer locations
obliged if this is provided for by the collective agreement, agreements, labor
agreement.

In a difficult economic situation, sometimes staff reduction is the only option possible way save the enterprise. Often, however, downsizing is a way to save resources. This procedure is spelled out in great detail in the Labor Code and has a well-thought-out sequence.

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Reduction of employees according to the Labor Code

Staff reduction is a procedure that involves Labor Code compliance with a number of conditions. Failure by the employer to comply with one of them may result in the employee being reinstated in the workplace, with payment of earnings for the entire period of forced absence, which will be considered the period from the date of dismissal to the date of reinstatement. Labor disputes are often resolved in judicial procedure and the court, as a rule, favors the employee.

Both employers and employees should know the rules for dismissal in accordance with Labor Law.

Dismissal due to staff reduction falls under Article 71 and must be carried out in two cases:

Upon liquidation of the position as a whole.
When staffing levels are reduced for a given position.

In any enterprise, large or small, there are positions that are occupied by only one employee, for example, the head of the hot laying department. If such a position is reduced, then the employee who occupies it is dismissed.

In large enterprises, there are positions that are occupied by several (sometimes several dozen) people, for example, a commuter bus driver. Here, not all positions can be cut, but only the number of employees can be limited, for example, “reduce the number of employees from 25 to 15.” Then only a portion of the persons occupying this position will be laid off; a number of other provisions of the Labor Code will come into force here.

Dismissal of workers is also carried out in case of reorganization of production. For example, when installing new equipment that eliminates jobs.

But in any case, staff reductions are carried out in accordance with Art. 178. And it is necessarily preceded by the approval of a new staffing table, which becomes the basis for the reduction and termination of an employment contract with a specific person.

When an enterprise or individual entrepreneur is liquidated, employees are also dismissed (Part 2 of Article 140). But in this case, all employees are fired, including those categories that are not subject to layoffs, for example, pregnant women caring for a baby, etc.

Who do not have the right to be laid off?

After the approval of the new staffing table, which contains a number of provisions providing for staff reductions, the question of cutting real jobs will arise. So, it will be considered which of the employees should be fired and which should be retained. A number of categories have protective guarantees that prohibit their dismissal.

Yes, Art. 261 of the Labor Code of the Russian Federation provides for special rights of the following categories:

Pregnant women.
Mothers with children under 3 years of age.
Single mothers with children under 14 years of age.
Mothers raising children with disabilities, under the age of 18.
Persons raising children without a mother under 14 years of age.

According to Art. 269, you cannot fire an employee who is under 18 years of age.

You cannot fire an employee who is on temporary sick leave or on vacation.

Important! Dismissal of these categories of employees is possible only with the complete liquidation of the organization. If a position is eliminated, the person must be offered another vacant position. However, it does not necessarily have to be equivalent in terms of qualifications and remuneration.

Some other categories of workers also enjoy the right of advantage in the case of equal performance and qualifications (Article 179):

If this employee is the only employee in the family with earnings.
Disabled people who received injuries or occupational diseases at this enterprise.
Disabled WWII or disabled combatants in defense of the Fatherland.
Employees who undergo training (upgrade their qualifications) in the direction of the organization on the job.
Employees with two or more dependents.

In what cases will dismissal be unlawful?

From all of the above, it should be concluded that a number of people of several categories cannot be dismissed due to staff reduction; they must be offered another job, they can be dismissed only then by agreement of the parties or by at will. Here, dismissal due to staff reduction would be unlawful.

One more important point is the decision of some managers to propose dismissal by employees not due to staff reduction, but at their own request. This is usually dictated by the desire to save on payments, prescribed categories subject to reduction. But not entitled to persons resigning of their own free will. If you dismiss at your own request, you will not be able to appeal against illegality.

It will be unlawful to dismiss a person who is on sick leave or on vacation. The procedure for dismissing employees due to staff reduction has a clearly defined mechanism, which provides a whole series actions.

If at least one of them is violated, dismissal may be considered unlawful. This:

Drawing up and approval of a new staffing table.
Notifying employees about staff reductions (posting an order) 3–2 months before the expected date of staff reductions.
Notification individually to each employee (in writing) at least 2 months before the proposed dismissal.
Issuance of a dismissal order.
Full payment to the employee on the day of dismissal.

Here, for example, dismissal without written notification to each individual may lead to the unlawful dismissal of a particular employee (he was not properly notified).

In practice, the absence of one of the listed management steps may be considered illegal dismissal.

Reasons and grounds for reducing the salary of an employee of an organization

It should be noted that the reduction in size tariff rate employee due to serious illness financial situation employer is unlawful. Therefore, considering it as one of the alternatives to downsizing is not entirely correct. Moreover, it is legally prohibited to reduce workers’ wages due to the difficult financial situation of the organization (enterprise).

Reductions in tariff rates are carried out in accordance with Art. 74 of the Labor Code of the Russian Federation and this is possible:

If there are changes in equipment and/or production technology.
In case of improvement of workplaces (based on certification).
During structural reorganization.
Other reasons put forward by the employer (but they can be challenged in court).

Provided that these changes entailed a decrease in the actual amount of labor required to perform the job function. However, the job function itself cannot be changed.

For example, equipment (car) was purchased, which is now part physical work the loader worker performs for him. In this regard, his rate was reduced by 30%. Or if, as a result of structural reorganization, the employee no longer needs to perform one of the actions he performs, for example, when packing goods, there is no need to carry wrapping paper, which is 25% of the amount of work performed.

In this case, such a reduction in the tariff salary must be preceded by a number of actions on the part of the enterprise:

Issuance of an order on the need and implementation of changes, with their justification. Carrying out other activities necessary to make changes.
Notifications to the primary trade union organization.
Notification of the employee about upcoming changes in working conditions 2 months in advance (in writing).
Concluding an additional labor agreement, which will reflect changes in the tariff rate.

In case of disagreement with a reduction in the tariff rate, the employee may be offered another workplace at the same enterprise, or he may be fired:

According to clause 2, part 1, art. 81 for staff reduction. Here he will be paid all due compensation.
According to clause 7.ch. 1 tbsp. 77 as someone who refused to work under the new conditions. In this case, payments fall under Part 3 of Art. 178.

If a person was notified of the changes and began work after the expiration of 2 months, but the additional agreement was not signed, then this is interpreted as actual consent to a reduction in the tariff rate.

Procedure and rules for laying off an employee at an enterprise

Reduction of staff concerns a specific person only when he has been informed under his signature that he will be dismissed due to staff reduction. The employee must be notified at least 2 months before the expected date of dismissal. If for any reason he refuses to sign the order for familiarization, then an act is drawn up, which indicates his notification.

After notification of a job reduction, management, if there are vacancies at the enterprise, must offer them to the dismissed person. In addition, if there are vacancies in another area, they may also be offered.

If during the period of these two months a person manages to find another job, he can notify management using a written application and will receive a payment earlier. In this case, he will be paid compensation in the amount of average monthly earnings.

On the day of dismissal, the employee is given work book with all the entries made in it, as well as a certificate of income for 2 last year, all other certificates required by the person being dismissed.

Held in mandatory full payment. In some cases, a dispute arises over payments. If this happens, then only the undisputed amount is paid on the day of dismissal.

Important! The period of 2 months for notification of layoffs is established by law for permanent employees. Temporary employees must be notified at least 2 weeks in advance. For those hired for a period of up to 2 months, this time is 3 days.

Procedure for calculating payments

The funds must be accrued and issued to the dismissed person on the day of his dismissal. The day of dismissal is the day of full settlement with the employee.

The only exception is when an employee disputes the amount of payments. Then on the day of dismissal he must be paid the undisputed amount.

The amounts of these payments are usually significant; often the employer asks employees to resign of their own free will or by agreement of the parties. With these formulations, payments for job search and additional benefits are not provided.

Size cash payments will depend on several factors:

Forms of employment: permanent or temporary.
The salary of the person being dismissed. In fact, all states are calculated from the average salary of the dismissed person.
Number of unpaid other payments: vacations, sick leave, business trips.

Terms and amount of funds accrual

Upon dismissal, a full settlement is made with the employee, and he will not only be given the requested certificates, a work book and the employment contract will be terminated, but also a full monetary settlement will be made. The amount given to the dismissed person must include all payments due to him. Among them will be:

The amount of severance pay is equal to the average salary for 1 month.
The amount of average earnings paid during the job search (for 2 months, sometimes 3).
The amount of additional compensation (2 more average monthly salaries).
Compensation in cash for all unused vacations.
Payments for all unpaid sick leave and travel allowances.
Wages for hours worked (the day of payment is also paid).

Important! If there were paid but unused items, the money will not be returned.

For temporary workers, amounts are calculated in biweekly amounts.

Rights and guarantees of employees during layoffs

The legislator has provided some rights and guarantees for workers who are subject to redundancy. They are mainly aimed at a more systematic dismissal, in which there is a period that should allow the dismissed person to adapt to new conditions and find work.

A number of rights and guarantees are provided for in Article 81. Here, the employer undertakes to offer the employee who is being laid off another vacant position at the enterprise (if there is one). If the company has branches or divisions, including in other cities, then the employee may be offered a job there.

An employee can take advantage of another right (Article 179) if he managed to find a job before the expiration of the 2-month period. Here, by agreement with the employer and on the basis of a written statement, he can be fired earlier, but he is paid a benefit in the amount of average monthly earnings.

In addition, with this type of dismissal, persons have the right to severance pay in the amount of two average monthly salaries and unemployment assistance from the employment service for 2 months (Article 178).

The rights of the dismissed person also include the employer’s obligation to notify the employment service authorities about planned events 3 months in advance. It is believed that this will allow laid-off persons to find work more quickly.

When considering the benefits pursuant to Art. 179, then they act only when considering the position held. If an employee applies for another position, then they may not be taken into account here.
Temporary disability is a reason that does not allow dismissing an employee under Art. 178. But dismissal after graduation sick leave cannot be cancelled. As a rule, in such cases, you will be able to work a little longer, but not avoid being fired.
Sometimes it becomes necessary to obtain a certificate from a previous place of work. According to the law, it can be obtained both upon dismissal and after it. At the same time, there are no deadlines that would limit the receipt of this or that certificate. But the employer must provide it within three days after the application. In this case, the document must contain all the necessary details and be certified.

A reduction in the number or staff of a company's employees is one of the grounds for termination of an employment contract at the initiative of the employer. Before proceeding with the procedure itself, you should clarify whether this will be a reduction in numbers or staff (). There is no official explanation of these concepts in labor legislation. In our opinion, the main difference is as follows. When staffing is reduced, the number of staff positions for a specific position is reduced, although the position itself is not abolished. But when staffing is reduced, a certain position is completely excluded from the staffing table.

The algorithm for dismissing an employee both during a reduction in the number of employees and when reducing the number of employees is general - we will analyze it step by step.

Step 1. Issue an order to reduce the number or staff

Having decided to reduce the number or staff, the head of the organization must issue a corresponding order. The law does not provide for a special form of order. The main thing is to reflect in it the reason and date of the upcoming reduction, as well as to note the positions being eliminated. The new staffing table should be approved by the same or a separate order.

Step 2. Take into account the priority right to remain at work

The preferential right to remain at work in the event of a reduction in the number or staff of employees is given to those employees whose labor productivity and qualifications are higher than those of others ().

If labor productivity and qualifications are equal, preference is given to:

family workers - if they have two or more dependents;
persons in whose family there are no other independent workers;
employees who received a work injury or occupational disease while working in this organization;
disabled people of the Great Patriotic War and disabled combatants in defense of the Fatherland;
employees who improve their qualifications in the direction of the employer without interruption from work.

In addition, pregnant employees, women with children under three years of age, single mothers raising a child under 14 years of age/a disabled child under 18 years of age cannot be dismissed due to staff reduction.

Step 3. Notify the employee of the layoff

The employee must be notified personally and against signature at least two months before the dismissal (). There are several exceptions to this rule - for example, an employee who has entered into an employment contract for a period of up to two months must be notified of dismissal at least three months in advance. calendar days, and for those employed in seasonal work - no less than seven calendar days (,). Also, an employment contract can be terminated before the expiration of the notice of dismissal period - with the written consent of the employee ().

If the employee refuses to mark receipt of the notice, it is necessary to draw up a corresponding act in the presence of at least two witnesses - this document will confirm that the employee has been notified of dismissal.

Step 4. Offer vacant positions to the employee

An employee who is being laid off must be offered available vacant positions from the employer to which he can be transferred (). They can be listed both in the notice of reduction and in a separate document.

It is necessary to notify the employee about vacancies repeatedly - the HR department is obliged to offer every suitable vacant position that appears in the company until the last day of work.

At the same time, the vacancy does not necessarily have to include work that corresponds to the employee’s qualifications; it is also possible to offer a vacant lower-level position or lower-paid job (). Moreover, the employer has the right to offer the dismissed employee to temporarily take the position of an employee on parental leave ().

If he agrees to one of the proposed vacancies, he is transferred to another position (,). In this case, dismissal will not occur.

Step 5. Notify the trade union and employment service about the upcoming layoff

In writing, no later than two months before dismissal, the employer must inform the trade union, as well as the employment service, about the reduction in the number or staff of employees (clause 2 of Article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 ""). If the decision to downsize could lead to mass layoffs, this must be done no later than three months in advance.

The notification sent to the trade union indicates the full names of the workers subject to layoffs, as well as the names of their professions, positions or specialties.

When contacting the employment service, you should indicate your position, profession, specialty and qualification requirements to each of the laid-off workers and the conditions of payment for their labor.

Each notice must be accompanied by:

a copy of the order to reduce the number (staff) of the organization’s employees;
draft order on the dismissal of employees of the organization;
draft organization staffing table.

Step 6. Issue a dismissal order (Form No. T-8 or T-8a)

If the employee does not agree to any of the proposed vacancies, on the last day of his work the HR department issues an order to terminate the employment contract (or). The wording of the reason for dismissal may be as follows: “Reduction in the number (staff) of the organization’s employees.”

The employee must be familiarized with this order against signature on the day of dismissal ().

Step 7. Issue a certificate of the amount of earnings for the two calendar years preceding the dismissal

TO last day the employee’s work, the accounting department must issue a certificate of the amount of his earnings for the two calendar years preceding the dismissal. The corresponding one has been approved.

Step 8. Draw up a document containing information that was sent to the Pension Fund for the period of the employee’s work

On the last day of work, the accounting department will also issue the employee a document that contains information sent to the Pension Fund for the period of work of the employee (clause 2-2.3 of Article 11 Federal Law dated April 1, 1996 No. 27-FZ "").

Special forms there is no provision for transmitting such information to the employee, so you should rely on the forms approved by the Pension Fund for submitting the relevant information to the department. For example, form SZV-M (), section 6 of form RSV-1 PFR (), etc.

Step 9. Make an entry in your personal card (Form No. T-2)

Before dismissing an employee, a corresponding entry is made by the HR department in his personal card ().

In the “Grounds for termination of the employment contract (dismissal)” you need to indicate the reason for the dismissal: “Reduction in the number (staff) of the organization’s employees.”

In the line “Date of dismissal” – indicate the last day of work.

Then you should enter the details of the order to terminate the employment contract - its date and number.

After this, the employee and the HR department employee certify the information about the dismissal with their signatures.

Step 10. Draw up a settlement note on the termination of the employment agreement (contract) with the employee (Form No. T-61)

On the last day of work, the HR department, together with the accounting department, fill out a settlement note regarding the termination of the employment contract with the employee (). On the front side, the HR employee indicates general information about the employee, as well as information about dismissal and the fact of termination of the employment contract. And on the reverse side the accountant calculates the amount due to the employee payments.

The employer is not obliged to familiarize the employee with the calculation note.

Step 11. Make a settlement with the employee

On the last day of work, the accountant must give the employee wages for the time worked, compensation for unused vacation, if he is entitled to it, and make other payments (,). The employee must also be paid severance pay in the amount of average monthly earnings (). In addition, the employee retains his average monthly salary for the period of employment, but not more than two months from the date of dismissal. And if an employee resigns from an organization located in one of the regions of the Far North - no more than three months ().

If the employment contract is terminated by agreement with the employee before the expiration of the notice period for dismissal, he is paid additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the specified period ().

In the event that the employee did not work on the day of dismissal, the corresponding amounts must be paid to him no later than next day after presenting them with a demand for payment.

Step 12. Make an entry in the work book and issue it

The work book is also issued to the employee on the last day of his work ().

Step 13. Prepare and issue to the employee, at his request, certified copies of other work-related documents

Upon a written application from the employee, the employer is obliged to provide him with duly certified copies of documents related to work (). For example, copies of an order for employment, orders for transfers to another job, extracts from the work book, certificates of wages– income certificate individual according to and a certificate of average earnings for the last three months, which is necessary to receive, etc. ().

Ekaterina Dobrikova ,
portal expert editor

Documents

Reductions in numbers or staff have been carried out in institutions, are being carried out and will continue to be carried out. Many reasons are pushing employers to take such extreme measures in relation to employees, ranging from reorganization and financial crisis to reduction in funding for one or another public sphere, reforming healthcare systems, education, etc. Today we will look step by step at the procedure for dismissing employees, we will tell you what guarantees and compensations are due to whom and who cannot be laid off. Since the reduction procedure is complex and time-consuming, we recommend that you approach this matter with all responsibility.

A little about reduction

Article 81 of the Labor Code of the Russian Federation establishes the grounds for termination of an employment contract at the initiative of the employer, in particular a reduction in the number or staff of an organization’s employees.

The first step is to understand when staff reductions are carried out and when staff reductions are carried out. So: if it is planned to reduce the number of employees in certain positions, this is a reduction in numbers. If any positions or entire structural divisions are cut, staff reductions occur. Although the procedure is the same, it is important to understand this difference, since the wording of the reasons for dismissal in the work book depends on this. But whatever reduction is planned, it is necessary to adjust the staffing table.

Let us recall that the staffing table is an organizational and administrative document that formalizes the structure, staffing and staffing levels of an organization, containing a list structural divisions, names of positions, specialties, professions indicating qualifications, information on the number of staff units.

Reduction procedure

Let us repeat that reducing the number or staff of employees is a rather complicated procedure. To avoid confusion, let's look at it step by step.

1. Making a decision to make redundancies. This is the very first and important stage reduction, since the validity of the decision is one of the criteria for the legality of dismissal under clause 2, part 1 of art. 81 Labor Code of the Russian Federation. It is this decision that provides the basis for making appropriate changes to the institution’s staffing table and the number of employees.

The new staffing table or changes in the current staffing table must provide for a real reduction in the number or staff of employees, that is, instead of the position being reduced, the simultaneous introduction of a new similar position into the staffing table for which another employee is hired is unacceptable. Let's give an example of a solution.

(MBOU Secondary School No. 37)

Order No. 52

on changes to the staffing table

Due to changes in the order and volume of funding, as well as changes in the implementation educational process

I ORDER:

1. To exclude the following positions from the staffing table No. 4, approved on 03/05/2012, from 12/01/2014:

teacher primary classes(1 staff unit);
janitor (1 staff unit);
GPD teacher (2 staff units).

2. Create a commission to determine the preferential right to retain workers subject to dismissal.

3. Prepare for the Head of the HR Department R. T. Knizhkina:

new staffing table for approval;
notifications of upcoming dismissal for each employee;
offers of other work corresponding to the qualifications of the laid-off workers, or lower-paid positions.

4. I entrust control over the execution of this order to Deputy Director O. I. Ruchkina.

Director Lineikina T. D. Lineikina

The following have been familiarized with the order:

Deputy Director Ruchkina, 09/10/2014

Head of HR Department Knizhkina, 09/10/2014

2.Determining the priority right to remain at work. According to Art. 179 Labor Code of the Russian Federation preferential right to remain at work is given to persons with higher labor productivity and qualifications. For example, if, when reducing the number of employees in a department, it is necessary to reduce only half of the specialists, who exactly will be fired is what the commission decides to determine the preferential right to retain at work the persons subject to dismissal. Please note that a commission may not be created - in this case, the employer independently decides all issues related to layoffs.

If labor productivity and qualifications are equal, preference in remaining at work is given to:

family - if there are two or more dependents (disabled family members who are on full content employee or receiving assistance from him, which is their permanent and main source of livelihood);

The preferential right to remain at work can only be taken into account among employees occupying the same position.

persons in whose family there are no other independent workers;
persons who received a work injury or occupational disease while working for this employer;
disabled people of the Second World War and disabled people from combat operations to defend the Fatherland;
employees who improve their qualifications in the direction of the employer without interruption from work.

It is very important to correctly determine the preemptive right, otherwise restoration cannot be avoided. Thus, B. filed a lawsuit against the MKU to declare the dismissal illegal and reinstate her at work. The court, considering the case, found that, according to the order of the MKU, the plaintiff’s position was subject to reduction. The MKU has created a commission to determine the preferential right to remain at work. According to the decision of the commission, B. does not have such a right, since her husband received unemployment benefits. Meanwhile, unemployment benefits are one of the guarantees social support provided by the state to the unemployed and cannot be considered as independent income. The court came to the conclusion that B. is one of the persons in whose family there are no other workers with independent earnings, which was not taken into account by the employer. Based on this, B. was reinstated in her previous position ( Appeal determination Court of the Jewish Autonomous Region dated 09/05/2014 in case No. 33‑473/2014).

Please note that this list may be expanded by collective agreement or industry agreements. For example, according to clause 6.5 of the Industry Agreement on Forestry Russian Federation for 2013 - 2015 The following additionally have a preferential right to remain at work:

women with children under 8 years of age;
employees with three or more children raising disabled children;
single workers raising children under 16 years of age.

Please note

The preferential right to remain at work is granted to citizens who have received radiation sickness, and disabled people due to the disaster on Chernobyl nuclear power plant (Law of the Russian Federation of May 15, 1991 No. 1244‑1 "Oh social protection citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant "), officials and citizens admitted to state secrets ( Law of the Russian Federation of July 21, 1993 No. 5485‑1 “On state secrets”), etc.

And of course, you need to remember the guarantees for pregnant women and women with children established Art. 261 Labor Code of the Russian Federation.

Separately, it is worth mentioning the reduction of employees who are members of the trade union. Such dismissal must be agreed upon with the trade union body. The opinion of the trade union is taken into account in the manner prescribed Art. 373 Labor Code of the Russian Federation.

The employee's notice period begins to count from the moment he receives the notice.

3. We notify employees. According to Part 2 Art. 180 Labor Code of the Russian Federation Employees are notified by the employer personally and against signature of the upcoming dismissal due to a reduction in the number or staff of the organization's employees at least two months before the dismissal. Please note that for some categories of employees, different notice periods are established. In particular, seasonal workers must be notified of the upcoming dismissal at least seven calendar days in advance ( Art. 296 Labor Code of the Russian Federation), and employees with whom a fixed-term employment contract has been concluded for a period of no more than two months - no less than three calendar days in advance ( Art. 292 Labor Code of the Russian Federation).

It is better to draw up the notification in two copies, so that the employee personally puts a mark on the copy that remains with the employer indicating that the notification has been received (see example on page). If an employee refuses to receive notice of dismissal, we recommend recording this fact by drawing up a report.

Please note that compliance with notification deadlines is very important. If the employer notifies the employee in less time, for example, one and a half months instead of two, the court will reinstate the dismissed person. This is confirmed by examples from judicial practice. The Omsk Regional Court reinstated the laid-off employee, since she was notified of her dismissal on 02/18/2014, and dismissed on 04/18/2014 - her period of work during the period of notice of dismissal due to staff reduction was less than two months ( Appeal ruling dated August 20, 2014 in case No. 33‑5298/2014 ).

Municipal budgetary educational institution

"Average secondary school No. 37"

(MBOU Secondary School No. 37)

Ref. No. 24/09 For the group teacher

from 09.13.2014 extended day A.I. Spokoina

[Notice of upcoming layoff]

Dear Anna Ivanovna!

We hereby inform you that due to changes in the procedure and amount of funding, as well as changes in the implementation of the educational process, a decision was made to reduce your position (GPA teacher) from 12/01/2014 by order of 09/10/2014 No. 52.

In accordance with the requirements of Part 3 of Art. 81 of the Labor Code of the Russian Federation, we inform you about a vacant position corresponding to your qualifications, as of September 13, 2014 - teacher-organizer of life safety (salary 7,800 rubles).

If you refuse to transfer to the proposed position, the employment contract with you will be terminated in accordance with clause 2, part 1, art. 81 of the Labor Code of the Russian Federation and you will be fired with severance pay in the amount of average monthly earnings.

Director Lineikina T. D. Lineikina

I have read the notice and agree to the transfer. Spokoinaya A.I., 09/13/2014

But what if an employee is absent from work, for example, sick? We believe that if it is not possible to deliver the notice in person, you can send it by mail by registered mail with notice or telegram. In this case, the two-month period should be calculated from the moment the telegram or letter was received by the employee.

4. We notify the trade union and the employment service about the reduction. Simultaneously with notifying employees, the employer must send a message about the upcoming dismissal due to downsizing to the elected body of the primary trade union organization. This must also be done at least two months before the proposed dismissal. Moreover, if a massive layoff is planned, the trade union must be informed about this at least three months in advance. This is the requirement Art. 82 Labor Code of the Russian Federation.

The criteria for mass layoffs are determined in industry and (or) territorial agreements. Thus, industry agreements between the All-Russian Trade Union of Workers government agencies and public services and the Prosecutor General's Office, between the Trade Union of Civilian Personnel of the Armed Forces of Russia and the Ministry of Defense, for the mechanical engineering complex for 2014 - 2016, it was determined that the following are considered mass dismissals:

50 people within 30 calendar days;
200 or more people within 60 calendar days;
500 or more people within 90 calendar days.

But according to the industry agreement on the aviation industry for 2014 - 2016, mass dismissal is considered to be 3% or more of the number of employees within 90 calendar days.

Please note

For violation of the procedure for providing information to employment service authorities, the employer may be held administratively liable for Art. 19.7 Code of Administrative Offenses of the Russian Federation.

In addition to the trade union body, it is necessary to notify the employment service ( Art. 25 of the Law of the Russian Federation of 04/09/1991 No. 1032‑1 “On employment in the Russian Federation”). The deadlines are the same as for notifying the union: at least two months in advance, and in the case of mass layoffs, at least three months in advance.

The form by which employers must notify the employment service is given in Appendix 2 to Resolution of the Government of the Russian Federation dated 02/05/1993 No. 99 “On the organization of work to promote employment in conditions of mass layoffs”. Please note that such a message can also be made in any form - in this case it is necessary to indicate the position, profession, specialty and qualification requirements for it, the terms of payment for each specific person being dismissed.

FYI

In force Art. 269 Labor Code of the Russian Federation layoffs of workers under the age of 18 are permitted only with the consent of the relevant state labor inspectorate and the commission for the affairs of minors and the protection of their rights.

5. We offer vacant positions to employees. One of the guarantees provided to an employee upon layoff is the mandatory offer of another job available at the institution (vacant position). Moreover, it is necessary to offer both a vacant position or work that corresponds to the employee’s qualifications, and a vacant lower position or lower-paid job. This can be done immediately in the notification (as in our example), or it can be done as a separate document.

Please note that the employer is obliged to offer vacant positions or other work throughout the entire notice period before dismissal. That is, if the employee was notified on September 13, 2014, in the event of a vacant position, for example, on November 25, 2014, the employer is obliged to offer it to the person being laid off.

FYI

If there is no other job or vacant position, the employee must also be notified about this.

If the organization has a position filled by part-time workers, it is not necessary to offer it. Indeed, according to Art. 288 Labor Code of the Russian Federation an employment contract concluded for an indefinite period with a person working part-time may be terminated if a person is hired for whom this work will become the main one. Meanwhile, the employer is given the right, but not the obligation, to dismiss a part-time worker when hiring a person for whom this work will become the main one ( Appeal ruling of the Irkutsk Regional Court dated 08/05/2013 No. 33‑6212/2013 ).

If the employee agrees to the proposed vacancies, it is necessary to formalize his transfer by concluding an additional agreement to the employment contract and issuing an order. In addition, you need to make an entry in your work book and personal card.

6. We issue a dismissal order. If the employee refused to be transferred to another job or there were no vacant positions in the organization, then after two months from the date of notification the employee is dismissed. By general rule, established Art. 84.1 Labor Code of the Russian Federation, termination of the employment contract is formalized by order (instruction) in form T-8 or approved by the institution.

The employee must be familiarized with the dismissal order against signature. At the request of the employee, the employer is obliged to provide him with a duly certified copy of the said order. If the order cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under signature, a corresponding entry is made on the order.

Please note

An employee may be dismissed (with written consent) before the expiration of a two-month period, and he is required to pay additional compensation in the amount of his average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.

7. We make an entry in the work book. According to Rules for maintaining and storing work books, approved By Decree of the Government of the Russian Federation dated April 16, 2003 No. 225 “About work books”, entries in the work book about the reasons for termination of the employment contract are made in strict accordance with the wording of the Labor Code with reference to the relevant paragraph Art. 81.

№ records	Date			Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating reasons and reference to the article, clause of the law)	Name, date and number of the document on the basis of which the entry was made
№ records	number	month	year
1	2			3	4
…	…	…	…	…	…
7	01	12	2014	The employment contract was terminated	Order dated 12/01/2014
				due to the reduction in numbers	No. 34-k
				organizations, paragraph 2 of part 1 of Article 81
				Russian Labor Code.
				Federation
				OK specialist Volkova
				MP Acquainted. Calm

The employee must be familiarized with the entries made against signature - both in the work book and in the personal card. The last document repeats the entry made in the work book ( clause 12 of the Rules for maintaining and storing work books).

8. We pay compensation and other amounts due to the employee. According to Art. 178 Labor Code of the Russian Federation upon termination of an employment contract due to a reduction in the number or staff of employees, the dismissed person is paid severance pay in the amount of average monthly earnings, and he also 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 person for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it.

Well, in addition to severance pay, the employee must be paid other amounts - salary for time worked, compensation for all unused vacation days.

9. We issue documents. On the last working day, the employee must be issued a work book. The employee must confirm the fact of its receipt with his signature in the book recording the movement of work books and inserts in them. If it is impossible to issue a work book on the day of dismissal due to the employee’s absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail.

FYI

Upon written application by the employee, the employer is also obliged to provide him with duly certified copies of documents related to work.

In addition, the employer is obliged to issue a certificate of the amount of earnings for the last two years preceding dismissal, as required clause 3, part 2, art. 4.1 of the Federal Law of December 29, 2006 No. 255‑FZ “On mandatory social insurance in case of temporary disability and in connection with maternity." Let us remind you that the certificate form has been approved By Order of the Ministry of Labor of the Russian Federation dated April 30, 2013 No. 182n .

Let's sum it up

The reduction procedure will not be so difficult if you approach it with all responsibility and do not “cover up” the dismissal of an unwanted employee with reduction. If the deadlines for notifying employees (as well as the trade union), the actual reduction, the offer of vacant positions or other work and taking into account the preemptive right to remain at work, as well as the opinion of the trade union (when laying off an employee who is a member of the trade union), it will be problematic to challenge the dismissal.

Among other methods of terminating an employment contract, dismissal due to reduction stands out. The fact is that among other types of dismissal provided for by the Labor Code (Labor Code of the Russian Federation), this is the most labor-intensive, but at the same time, perhaps, the most guaranteeing compliance with the rights of the employee.

Tom, what an employee and employer need to know when reducing staff, I dedicated this article.

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 redundancies, the results of qualifying exams and the employee’s education must be taken into account (in the same position an employee with higher education will enjoy an advantage over a colleague with a secondary specialization), 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.
Those suffering from injury or occupational disease obtained from this enterprise.
Disabled war veterans.
Heroes of the USSR and the Russian Federation, holders of the Order of Glory.
Victims Chernobyl disaster and 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, the Supreme Court of the Russian Federation, by ruling No. 19-B07-34 dated December 3, 2007, 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 reduction 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.

✔ Procedure, 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 and is paid wages for days worked. last month 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, former enterprise for two months continues to pay him the average monthly salary (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. Besides, employment contract or the collective agreement may provide for other payments in case of staff reduction.

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.