I am being laid off. We reduce the staff: typical mistakes of employers. Development and approval of the updated staffing table

One of the types of termination of an employment contract at the initiative of the employer is dismissal due to staff reduction. The procedure provides significant social guarantees to the employee. Reduction of staff requires the employer to have a clear workflow.

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Rules

In the legislation, the possibility of dismissal to reduce the staff of employees is established in the Labor Code of the Russian Federation.

The reason for the decrease in numbers may be:

enterprise restructuring;
economic difficulties associated with macroeconomic trends.

Carrying out staff reductions is typical for employers that comply with the requirements of labor legislation in relation to employees.

In other situations, managers or owners of companies force employees to leave of their own free will or by agreement of the parties. Articles deprive the employee of the opportunity to receive social guarantees and challenge the actions of the employer in court.

A different picture takes place with a reduction in staff:

the employee has the right to receive average earnings within 2 months;
when registering with an employment center, a person receives a payment for the 3rd month from the moment of notification;
being registered with the employment center allows you to access databases of vacancies and receive material payments for the entire period of being on the lists of the unemployed;
the person gets the opportunity to increase the length of service. The period of being registered as unemployed is included in the total length of service, taken into account when calculating disability certificates.

The number of employees of the company is reflected in the staffing table. The document is approved by the head of the company when drawing up, making changes.

Positions on the schedule are:

with designated persons;
vacant at the time of creation or adjustment of the state.

Measures to reduce staff begin with the notification of the trade union body of the enterprise. If there is no education in the company, a general meeting is held to notify employees.

For competent compliance with the requirements of the law, a lawyer is involved if there is an official in the organization or individual entrepreneur.

Prior to the redundancy procedure, a commission is appointed from among the employees of the enterprise. The number of members must be at least 3.

The chairman of the commission responsible for document circulation is appointed. If a trade union body is organized at the enterprise, its representative is included in the commission.

The company issues orders approved by the head:

On the approval of the composition of the commission with an indication of the task.
About downsizing.
On the development and publication of a new staffing table.

Activities are carried out regardless of the number of posts being cut.

Dismissal procedure

Reduction of staff and dismissal of employees are carried out subject to the following conditions:

legally competent execution of documents in accordance with the requirements of labor and civil legislation;
revision and approval of the new staffing table;
when dismissing employees, the principle of the pre-emptive right to remain in positions is observed;
prior notice to the dismissed person;
payment of amounts due;
the consent of the trade union body, if any, at the enterprise.

After the approval of the new amended staffing table, the commission proceeds to identify employees who are subject to reduction. When compiling the circle of persons subject to dismissal, the requirements of the Labor Code of the Russian Federation are taken into account.

Persons of high qualification with indicators of labor productivity have the preferential right over other employees. As evidence, diplomas, documents on advanced training, entries in the work book are accepted.

The rest of the employees have benefits under the following conditions:

The presence in the family of two or more disabled persons. Dependents include minor children and persons who do not have the physical ability to find a job.
Absence of other family members who are employed and have earnings.
Those who received an industrial injury from the employer during the performance of duties.
Veterans and invalids of the Great Patriotic War, persons, combatants and citizens equated to them.
Employees who improve their profile qualifications on the job, sent by management and issued by order.

One of the important documents of the enterprise, providing social guarantees, is the collective agreement.

If the document establishes an additional list of persons who have the priority right to remain in case of reduction, the provisions are taken into account when determining the dismissed persons.

The provisions of the collective agreement must not contradict the current labor legislation.

Persons not subject to dismissal due to staff reduction:

Women during pregnancy and having children under 3 years of age.
Single mothers with children under the age of 14 or with disabled children under the age of 18.
Another parent, sole breadwinner, in whose family there are 3 children, one of which has not reached the age of 3.
employees until they reach the age of 18.

The list of persons is specified in the Labor Code of the Russian Federation. The main condition for the dismissal of persons to reduce staff is the prior notification of employees. The form is made in any form.

Employee Notification Requirements:

the document is submitted in writing. The employee must personally familiarize himself with the notice and put the date, signature with full name and position. In case of refusal to sign on the document, a record of the notification is left by members of the commission in the amount of 2 people;
the notice shall be presented to the employee no later than 2 months before the dismissal. The period is provided for the employee to search for a new job. Despite the employee's stay at the workplace during the period, he cannot be prevented from being absent for a good reason.

If the employee is on vacation for various reasons or has a disability confirmed by a sick leave, the notice (by mail or otherwise) is not served.

If there are other vacancies and the qualifications of the employee match, the employer is obliged to offer him a new place of employment.

The offer is made in writing. On the document, the employee must leave comments on agreement or refusal with confirmation of the entry with a signature with a transcript and the date of familiarization.

What documents are needed

The staff reduction procedure requires a significant number of documents, the absence of any of which allows you to protest the dismissal.

You need to compose:

notification of the trade union body, if any, at the enterprise;
orders to reduce staff, create a commission;
reduced staffing approved by order;
employee notifications;
act - a proposal for transfer to other positions available in the state;
dismissal orders.

The company is obliged to send a notification letter to the employment center about the planned staff reduction measures. Information must be received by the institution 3 months before the dismissal of employees.

Employee rights

An employee upon dismissal due to a reduction in staff has the right to:

read the notice of reduction in 2 months;
receive payment for the period in the amount of average earnings and other compensations established by the collective agreement;
use the 2-month period to find a new job;
resign before the deadline specified in the notice. The basis for early termination of the contract is a written application by the employee. Dismissal is made with the consent of the employer and without additional work;
receive compensation for leave due during the performance of labor duties and not used earlier. Payments are made instead of the main, additional holidays and those types that are approved by the collective agreement.

The procedure for downsizing and dismissal of employees may have violations. Individuals have the opportunity to challenge the commission's decision and the dismissal procedure.

Protesting is often carried out at the stage of determining the circle of persons to be reduced if there are workers with equal rights.

In case of disputes, employees can contact the labor commission. The failure to reach an agreement between the parties when reducing the state is disputed in the order of court proceedings by filing a lawsuit.

How to make an entry in the labor

What compensation is provided for dismissal due to redundancy? What is the procedure for layoffs? Is it possible to reduce pregnant women and pensioners? We will answer these and many other questions in this article.

In order to survive during the financial crisis, or to get out of the difficult financial situation of the company with minimal losses, the management of the organization may decide to reduce staff - the abolition of staff units or a decrease in the number of employees. It is very important for an employer to know all the subtleties of this difficult procedure, because the slightest violation in its implementation can lead to litigation with laid-off employees, and most importantly, to the loss of the company's positive reputation. Redundancy dismissal cases are among the most difficult among all litigation labor disputes, due to the mass nature of such dismissals.

This article will help employees avoid the “tricks” of unscrupulous bosses, learn about their legal rights and due payments in case of reduction, and also decide which article is more convenient and profitable to quit.

Provisions of the Labor Code of the Russian Federation on dismissal by reduction

All issues of staff reduction are regulated by the Labor Code of the Russian Federation. It states that the legal reduction of workers should be carried out taking into account the following requirements:

1) The fact of dismissal due to redundancy must have documentary evidence in the form of a staffing table, payroll, payroll, etc. It is not allowed to replace a reduced position with an alternative one: with a similar nature and scope of duties performed.

2) Before laying off an employee, he must be offered other available vacancies, taking into account the qualifications and health status of the employee.

3) The employer must take into account the list of persons whose dismissal is unacceptable, as well as comply with the provisions of the Law on the preferential right to leave at work (Article 179 of the Labor Code of the Russian Federation).

4) On the planned reduction and dismissal, it is necessary to warn each employee individually, no later than 2 months before the date of reduction, as well as the elected trade union organization.

5) On the last working day with the reduced employee, the final calculation is carried out and a work book is issued.

7) According to Art. 178 of the Labor Code of the Russian Federation, the employee is given a severance pay and other payments are made, which you will learn about later.

Step-by-step instructions for dismissal for reduction

Compensation, payments, benefits: what is due to an employee with a reduction in staff?

In addition to the "standard" payments (payment of salaries and compensation for unused vacations), the reduced employee is entitled to additional payments:

Payments of average earnings during the search for a new job, not exceeding 2 months from the date of dismissal (and at the discretion of the employment service - up to 3 months).
Severance pay in the amount of average earnings (Article 178 of the Labor Code of the Russian Federation), with a reduction in the staff of seasonal workers - 2-week average earnings (Article 296 of the Labor Code of the Russian Federation). The employment contract may provide for a larger benefit.
Additional compensation in the amount of 2 average salaries.

At the same time, it is not allowed to withhold funds for unworked vacation days, “taken in advance”.

So, the total amount of payments for the reduction is quite significant. Therefore, some employers, in order to save money, "persuade" or "force" the employee to quit on their own initiative, or by agreement of the parties.

(Indeed, notifying an employee of a reduction does not exclude his dismissal for other reasons).

How can an employee competently act in a situation of “pressure” in order, on the one hand, to avoid an open conflict with the employer, and on the other hand, not to be “losing”? And what are the fundamental differences in the consequences of each of the three types of dismissal?

Dismissal by agreement of the parties or by reduction, which is better?

The employee should know: by writing such a statement, he signs a “verdict” for himself and deprives him of all payments due during the downsizing.

But there is one important nuance: it all depends on the wording of the application. If the employee draws up a statement as follows: “I ask you to dismiss me in connection with the reduction of my position before the expiration of the notice of dismissal,” then the dismissal will take place under Art. 81 of the Labor Code of the Russian Federation, with a guarantee of all payments. However, such dismissal is permissible only with the approval of the employer.

Who can't be fired due to redundancy?

The employer does not have the right to dismiss due to redundancy:

temporarily disabled;
employees on vacation (including student leave and without pay);
women with children under the age of 3; single parents with a child under the age of 14 or a disabled child under 18;
trade union members, etc.

Can a pregnant woman be fired due to redundancy? Pregnant women and women on parental leave cannot be dismissed on this basis.

If an employee belonging to one of the "inviolable" categories was laid off, his reinstatement in a judicial proceeding occurs in an "automatic" mode.

Priorities of employees during layoffs

In the downsizing process, not all employees are on an equal footing in terms of the risk of being fired. Employees with higher labor productivity and qualifications are given the preferential right to stay at work. Other things being equal, the following employees have priority:

persons who are the only "breadwinners" in the family;
employees who have been injured in this organization or prof. disease;
employees who improve their qualifications in the direction of the employer;
family persons - if there are 2 or more dependents.

In addition to the categories specified in the Labor Code, the advantage when leaving at work upon dismissal due to redundancy is determined by federal laws for other employees:

military spouses;
authors of inventions;
retired from military service;
disabled veterans of the Great Patriotic War and military operations;
affected by radiation, etc.

Internal collective agreements may also provide for categories of workers, with the benefit of staying at work.

Compliance with the rights of these categories of workers must be documented: by compiling a summary Comparison Table, or by another document.

Dismissal to reduce the staff of pensioners: payments and features

Reaching retirement age is not only not a reason for a priority reduction, but in accordance with the provisions of Art. 179 of the Labor Code of the Russian Federation, may be an advantage - due to the high productivity and qualifications of the employee.

With a reduction in staff, the dismissal of pensioners is ensured by all the guarantees and payments provided for in Art. 178 of the Labor Code of the Russian Federation. Other interpretations of legislative norms contradict the requirement of equal rights for workers (Part 1, Article 2 of the Labor Code of the Russian Federation) and the prohibition of discrimination in the sphere of labor (Article 3 of the Labor Code of the Russian Federation).

The material was prepared by order of the law firm "Dominium"

This is a long and very responsible process for any employer. Because it involves notifying the persons to be reduced two months before the date of its implementation, as well as paying them all the money due, which must be issued on the last day of employment. In addition, the employer must offer this category of subordinates available vacancies, and also prevent the hiring of new people.

Preparing to cut

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

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

Notify subordinates about this 2 months in advance;

Offer workers other vacancies that are available in the organization;

Notify the employment authorities within the period specified by law.

If a citizen already knows in advance that there is a reduction at work and that he falls under it, then you can immediately discuss this issue with the manager. After all, you can get all the necessary payments before a two-month period and quickly find a new vacancy, unless, of course, you can’t stay the same.

Making redundancies is expensive

In fact, the dismissal of employees due to staff reductions is not only a long time, but also not a very cheap procedure. At the same time, the boss needs to pay people not only wages and compensation for vacation that was not used, but also severance pay for two months. In addition, if a citizen, after the reduction, no later than ten days from the date of his dismissal, is not employed by him, then in this case he will receive a cash allowance from the former leader for the third month. That is why many employers try to bring their subordinates under dismissal of their own free will. Then you don't have to pay them that much money.

In the event that there is a reduction in work, but the boss nevertheless forced the objectionable employee to leave of his own free will, such a dismissal can be appealed through the court. Only for this will need witness testimony and documentary evidence of this fact. Otherwise, it will be simply impossible for a subordinate to recover at work and receive all the money due.

Notification

The manager warns the employee about the upcoming reduction 2 months in advance. The notification shall be made in writing and handed over to the person against signature. Otherwise, the employee will not be considered aware of the upcoming dismissal, which can subsequently cause great trouble for his boss, up to and including litigation.

In a situation where there is a reduction in work, the rights of the employee should not be infringed upon by his boss. The latter is obliged to offer the former all available vacancies that can be specified in the notice itself.

The cut notice looks like this:

00.00.00 _______________

Dear __________________ (full name of employee)!

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

We offer you a choice of available vacancies ______________ (name of vacancies). In the event that you agree to work in another position, please inform the Human Resources Department of the organization (name) Human Resources Specialist in writing before the expiration of two months from the date of receipt of the notification.

Sincerely, Director of LLC ________________ (signature transcript).

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

Payouts

When a person is dismissed on the basis of paragraph 2 of part 1 of Article 81 of the Labor Code of the Russian Federation, the manager must fully pay him and pay:

Salary for all hours of work.

Compensation for vacation if it was not used. If the employee was already on vacation, but the period was not fully worked out, then with a reduction in deductions from his salary, no deductions are made for this.

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

Full settlement with the employee must be made on the last day of his labor activity, otherwise it will be a violation of Article 140 of the Labor Code.

The right to keep a job

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

In the event that all employees are of equal productivity and high qualification, preference should be given to an employee who:

Has two or more dependents for whom the salary of this person is the main source of livelihood;

Is the sole breadwinner of the family if no other member of the family has a job or other income;

Received an illness in the exercise or other serious injury in this organization;

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

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

Paperwork

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

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

All documents related to the implementation of a person's labor activity, as well as all the funds due to him, must be issued to the employee on the day of dismissal.

Invalid moments

At a time when there is a reduction in work, it is unacceptable to accept new people for existing vacancies. This will be a serious violation on the part of the manager, since he must offer these vacant positions only to persons who are threatened with dismissal on this basis. The level of education of employees in this case does not matter.

It is unacceptable, in the final financial settlement, to deduct from the employee's salary for annual leave that has already been granted, if at the same time 12 months have not been fully worked out.

In a situation where there is a layoff at work, the rights of the employee in no case can be somehow infringed on the part of the management. This primarily applies to timely payments, otherwise the dismissed person may apply for protection to the judicial authorities.

Contacting the employment authorities

After the employment contract with the employee has ended on the basis of redundancy, the citizen has every right and is even obliged to apply to the employment authorities within 10 days from the date of his calculation. In this case, he will retain the average earnings for the third month.

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

Job search

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

Finding a suitable vacancy is always morally difficult. This is especially difficult in the case when the dismissed person went through a reduction. The search for a job in this situation is further complicated by the fact that it is difficult to find a place with a decent salary. That is why many citizens who are subject to layoffs try to stay in the same place, even if in a different position and with a lower salary. This is better than being unemployed later and receiving a small allowance from the employment center.

A good job after the reduction is likely to go to someone who has extensive experience in their profession and is hard at work looking for a new vacancy.

Illegal reduction

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

In the event of an illegal reduction, no payments, except for wages, are made to the citizen, although they are written down on paper. At the same time, few people turn to the judiciary for the protection of rights, although such cases are quite common.

Arbitrage practice

Court hearings between a subordinate and his employer are not uncommon for modern justice. At the same time, the law is almost always on the side of the employee, and not his boss.

Let us give an example from judicial practice illustrating the situation.

The citizen worked as a foreman in a factory. After the manager changed, he started having problems at work. The new boss wanted to arrange another person for this position, but he could not fire the employee, there were no grounds. Then the personnel specialist advised the management to carry out the procedure of "imaginary" reduction, about which to notify the foreman 2 months in advance. At the same time, no other vacant positions were offered to the latter, and he was fired. And another person was quickly taken to this place. Upon learning of this, the former subordinate filed a lawsuit against the boss.

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

In case of violation of the norms of labor legislation, an illegally dismissed person has the right to reinstatement at work. The reduction and subsequent termination of the employment relationship in this case can always be appealed through the judicial authorities.

At the legislative level, the procedure for the release of employees in connection with the optimization of personnel is spelled out in sufficient detail, because the termination of cooperation occurs at the initiative of the employer, in connection with which the reduced employees are entitled to a number of additional guarantees and benefits upon dismissal due to redundancy, step by step instructions which is presented below.

Normative base

The reduction of an employee according to the Labor Code of the Russian Federation is regulated by article 81 part 2, according to which an employee can be fired at the initiative of management when optimizing the state.

According to the accepted norms, the release of a worker is allowed only if there is no vacancy at the enterprise, or the employee refuses to be transferred to a lower vacancy with lower qualification requirements or with a lower wage level.

If the enterprise has several branches located in different settlements, the transfer of an employee to another locality is allowed only with his consent, and on the basis of the conditions prescribed in the local acts of the enterprise, in the collective agreement or in the Regulation.

The procedure for layoffs for downsizing provided for in article 180 of the Labor Code of the Russian Federation, where, in particular, it is said that the manager is obliged to notify the employee of the upcoming release two months before the termination of the employment relationship in writing.

The employee, in turn, has the right to terminate the cooperation ahead of schedule, without waiting for the end of the two-month period, while he retains the right to receive compensation in connection with the reduction in the amount provided for by law.

What does an employee lose by leaving voluntarily? Video:

How to lay off a layoff worker?

It should be noted that dismissing a layoff worker is not as easy as it seems at first glance. The fact is that such a dismissal provides for a rather complicated procedure with strict observance of the deadlines for issuing the relevant documents and the procedure for their execution.

In case of violation of one of the conditions, the employee can challenge such a dismissal in court and be reinstated in his previous position, as well as demand compensation for both moral damage and an obstacle to earning money due to the fault of the company's management.

Step-by-step procedure for laying off an employee as follows:

issuance of an order on staff optimization;
union notice;
issuing an order to notify employees of the upcoming dismissal;
notice to the Employment Service;
giving notice to the employee.

The basis for the reduction of employees is officially issued state optimization order on the basis of a memorandum or report of the head of the department indicating the list of positions that, for one reason or another, are subject to reduction.

Then, in accordance with Article 82 of the Labor Code of the Russian Federation, the management is obliged to notify the Trade Union of the upcoming release of positions, indicating the number of employees.

If there is a mass dismissal of workers, for example, an entire department or branch, it is necessary to notify Trade Union workers three months before the release of personnel.

By the way, termination of employment is considered a mass layoff. with more than 5% of employees from the total population.

If only a few workers are laid off, the Union must be notified two months in advance.

Then the head decides to dismiss specific employees in accordance with the proposals of the heads of departments, about which an appropriate order is issued indicating the positions and the date of reduction, as well as with the condition that employees who are subject to reduction are notified in writing. The order is issued at least two months before the termination of the employment relationship.

Based on the issued order, it is drawn up indicating not only the date of dismissal, but also with a proposal for vacant positions that he could take, taking into account qualifications and health status.

The employee, in turn, having received the notice, must carefully read it, and then sign and date the delivery, thus confirming the fact of familiarization with the upcoming dismissal and starting the countdown of the two-month period before the release.

Simultaneously with the notification of the employee, the enterprise is obliged to notify the employment service of the upcoming release, on the basis of Federal Law No. 1032 - 1 of 04/19/1991, since the specified institution also needs time to select vacant positions that could be occupied by dismissed employees after a two-month period.

Priority right to leave

In accordance with the norms of Article 179 of the Labor Code of the Russian Federation, when selecting candidates to be reduced, in some cases it is applied preemptive right to leave, which is used when reducing identical positions. For example, if there are several economists or accountants who have similar duties and qualifications.

When choosing a candidate for release, management evaluates, first of all, the labor productivity of each employee, qualifications, for example, the presence of the first or second category, work experience in the position held and work experience in this field in general.

If the indicators are equal, the employee's marital status is assessed, in particular, the presence of minor children or disabled dependents who are fully supported by the worker.

Also, the advantage is given to persons who received an industrial injury at the enterprise, were sent to advanced training courses at the expense of the employer and on the job, or are veterans of military operations.

Reduction of staff dismissal procedure, step by step instructions

Unlike the initiation of the employee reduction procedure, the dismissal process is not very different from the termination of an employment relationship for other reasons. In particular, step-by-step procedure for dismissal as follows:

union notice;
issuance of a dismissal order;
issuance of settlement payments;
filling out a workbook.

If a member of the trade union of the enterprise is to be dismissed, then without fail such a procedure must be agreed with the trade union organization on the basis of Article 373 of the Labor Code of the Russian Federation.

The mentioned norm states that when deciding to dismiss a trade union member, management is obliged to send a draft order, as well as the grounds for dismissal fixed in writing, for consideration by the Trade Union Organization and their adoption of a reasoned decision on the legality of terminating the employment relationship.

In turn, the Trade Union must consider the submitted package of documents within 7 days and send its decision, which will be taken into account when the employee is dismissed. If the decision is not made within the agreed period, the employee is subject to dismissal in the general manner, but if a decision is made to refuse dismissal, the parties are given another three days to resolve disagreements.

If the reduced employee is not a member of the Trade Union, then his dismissal is carried out in a general manner on the basis of Article 84.1 of the Labor Code of the Russian Federation given the basis for the release. That is, after a two-month period from the moment the employee is notified of the impending termination of cooperation, the enterprise publishes with reference to part 2 of article 81 of the Labor Code of the Russian Federation.

Having received an order to terminate the employment relationship in his hands, the employee gets acquainted with him and accordingly puts his signature, thus expressing agreement with the circumstances.

If the employee refuses to sign the order, it is announced aloud in the presence of two witnesses, who then put their signatures on the refusal act, confirming the fact of familiarization with the dismissal order.

On the day of dismissal, in accordance with Article 140 of the Labor Code of the Russian Federation, the enterprise is obliged to make a full financial settlement with the dismissed employee, having paid all the due compensation upon dismissal due to staff reduction and wages from the moment of the last payment.

Then, on the basis of the issued order, an appropriate entry on the dismissal is made in the work book, indicating the grounds for termination of the employment relationship, and the agreed document is handed over to the employee.

If the employee on the last working day, which, by the way, is also considered the day of dismissal, was absent from the workplace due to objective reasons, a notification is sent to him in accordance with the norms of Article 84.1 of the Labor Code of the Russian Federation.

Dismissal of an employee for reduction, video:

Early dismissal due to staff reduction

If an employee, having received a notice of a job reduction, expressed a desire to terminate the employment relationship ahead of schedule, that is, earlier than the date specified in the notice, on the basis of Article 180 of the Labor Code of the Russian Federation, the management cannot refuse him this.

However, given that the employer is still the initiator of the dismissal, compensation is provided for at the legislative level for the dismissed employee. That is, the company is obliged to compensate the employee for the time, remaining until the release in the amount of the average earnings for each day.

The fundamental issue in this situation is the wording of the letter of resignation, given that the termination of employment occurs ahead of schedule and at the initiative of the employee himself. In particular, the employee does not ask to be fired, but agrees to the termination of the contract and asks to terminate cooperation ahead of schedule on the basis of Article 180 of the Labor Code of the Russian Federation, with payment of the due compensation.

What payments and compensation are due upon reduction?

The procedure for making payments when an employee is made redundant is regulated by the norms of Article 178 of the Labor Code of the Russian Federation, which, in particular, states that the company is obliged to pay a severance pay in the amount of at least the average monthly salary to an employee subject to reduction.

In some cases collective agreement payments may be provided in a larger amount, for example, in the form of three salaries or two average earnings per month.

For certain categories of workers, the amount of severance pay is set at a higher rate at the legislative level, and not only at the local level. In particular, upon dismissal of the head of the enterprise due to reduction, the allowance is paid in the amount of at least three times the average earnings on the basis of Art. 279, and under the terms of the collective agreement, it is possible to establish a larger amount.

In addition to the severance pay, the company is obliged to pay the employee also compensation for all unused holidays, as stated in Article 127 of the Labor Code of the Russian Federation, and wages from the moment of the last payment.

If the employee does not agree with the amount of payments, and believes that the amount should be larger, he has the right to apply to the court for resolution of the issue within three months from the date of dismissal, and on the day of dismissal he is obliged to pay the amount that is not the subject of disagreement.

Categories of workers not subject to reduction

Despite the personnel policy of the enterprise and the desire to dismiss some employees for a number of reasons that are not always justified, there is a category of workers who are practically impossible to reduce in the manner prescribed by law, namely, it is forbidden to lay off a pregnant woman when laying off staff on the basis of Article 261 of the Labor Code of the Russian Federation, the only exception is the complete liquidation of the enterprise.

It is also impossible to dismiss in connection with the reduction of employees who have children under the age of three or fathers who raise children themselves.

not subject to reduction and single mothers or single fathers raising a disabled child, or a child who has not reached the age of 14.

It is also impossible to dismiss employees who are the sole breadwinners of the family with at least three children, the youngest of whom is under 3 years old.

However, the stipulated article also allows exceptions, that is, these categories of employees can be dismissed due to staff reductions if they have committed a number of violations.

In particular, they were involved in disciplinary responsibility in connection with repeated violation of labor discipline or failure to fulfill their immediate duties, and, possibly, committed an immoral act.

Some nuances of downsizing

Often, even with clearly defined dismissal due to layoffs situations arise when it is not possible to dismiss an employee within the period specified in the notice, in particular, if the employee fell ill at the time of dismissal and, in accordance with Article 81 of the Labor Code of the Russian Federation, he cannot be dismissed.

By the way, the legislation establishes a minimum notice period for the upcoming reduction, namely two months, but nowhere is there a ban on dismissal at a later date, again, which is applicable in case of temporary disability.

A similar dilemma during dismissal for reduction may also arise when an employee is granted annual leave. In particular, the norms of Article 123 of the Labor Code of the Russian Federation oblige both the employee and the head comply with the vacation schedule, therefore, the released employee, at the time of the reduction, may not work, but rest, and again, on the basis of Article 81 of the Labor Code of the Russian Federation, he cannot be fired during this period.

However, as mentioned above, certain categories of employees are subject to the pre-emptive right to leave, due to high qualifications and work experience, as well as long length of service, which can be decisive factors when choosing a downsizing employee.

Considering that employees of retirement age, as a rule, are skilled workers and have a decent length of service, as well as work experience, they have every chance to keep their jobs.

Also, often, many employees believe that they are paid in the amount of three months of earnings, which is an erroneous opinion. Three-month average earnings can be paid only if such a condition is provided for in the collective agreement, in other cases, the employee is paid a severance pay in the amount of one average salary.

The right to receive benefits for the second month after the dismissal of the former employee arises only if he does not officially find a job within two months and presents a work book without a record of new employment.

But the allowance for the third month is already paid in exceptional cases and only by decision of the Employment Service, provided that the dismissed employee was registered with them within 14 days from the date of release, and they could not employ him for objective reasons.

Questions also arise from workers who were cut in violation of procedure in particular, what are their chances of being reinstated. As judicial practice shows, in most cases, the court takes the side of the employees, obliging the employer not only to provide the former place of work, but also to pay compensation for the deprivation of the right to work, and therefore, to receive income.

As a rule, the lawsuit lasts from several months to six months, and when resolving the issue in favor of the former employee, the company will be obliged to pay both compensation for moral damage and compensation for the obstacle to work for all days from the moment of dismissal, moreover, calendar days, not working days. .

That is why every leader needs to be more attentive to the procedure for dismissal of employees in connection with the optimization of staff and strictly comply with all statutory regulations.

Due to possible difficulties in the economy, some companies are already starting to seriously think about optimizing their staff. In other words, abbreviations. How to properly organize these events - in our article.

We issue an order and notify the competent authorities

First of all, the enterprise should issue an order to reduce staff and introduce a new staffing table. An alternative option is to make appropriate changes to an already existing document (by issuing a corrective order).

The redundancy order must contain information about:

• reduced staff positions;

· Officials responsible for carrying out reductions.

After that, departments such as:

employment agencies;

primary trade union organization.

Notification in writing shall be sent no later than two months before the date of dismissal of the employee. In case of mass dismissal, this period is extended to three months. The basis is paragraph 2 of Article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 "On Employment in the Russian Federation".

Keep in mind: whether the dismissal belongs to the category of mass or not - this is determined by special criteria that are enshrined in the relevant industry and territorial collective agreements.

At the same time, the primary trade union organization must be notified within the same time frame. He speaks about it.

If the notification procedure or deadlines are not followed, the dismissal of employees may be considered illegal.

Please note: if members of the trade union fall under the reductions, then the employer is obliged to request a reasoned opinion of the elected body of the primary trade union organization. The trade union must submit such an opinion within 7 working days. Otherwise, it should not be taken into account. If the trade union does not agree with the corresponding dismissal, then it must conduct additional consultations with the employer, whose results are drawn up in a special protocol. In situations where an agreement cannot be reached, the employer, after 10 working days from the date of the request, has the right to make a final decision on the reduction. The dismissal of a trade union member takes place within a month from the date of receipt of a reasoned opinion -.

We define the circle of "privileged" persons

So, when reducing the state or number of employees, the preferential right should be given to employees who have higher labor productivity and qualifications. The legal basis for this is part 1 of article 179 of the Labor Code.

If employees have equal qualifications and labor productivity, then they should be left at work in the first place (part 2 of article 179 of the Labor Code of the Russian Federation):

family workers in the presence of two or more dependents - disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood;

Persons whose families do not have other self-employed workers;

employees who received an industrial injury (professional disease) during the period of work with this employer;

Disabled veterans of the Great Patriotic War and combat invalids;

employees who improve their skills in the direction of the employer on the job.

In addition, certain categories of employees who have a preferential right to work can be enshrined at the legislative level - for example, by the provisions of Article 14 of the Law of the Russian Federation of May 15, 1991 No. 1244-1 "On the social protection of citizens exposed to radiation due to the Chernobyl disaster NPP" and Article 21 of the Law of the Russian Federation of July 21, 1993 No. 5485-1 "On State Secrets".

It should be borne in mind that there are categories of workers who, as such, cannot be fired with a reduction in staff. These include (Article 261 of the Labor Code of the Russian Federation):

· pregnant women;

women who have a child whose age is less than three years;

a single mother who is raising a disabled child under the age of 18 or a child under 14.

We warn employees

Laid-off workers should be warned about optimizing against a signature. Deadline - no later than two months before the date of dismissal of a certain employee. Base - .

Please note: before the expiration of the specified period, the employment contract may be terminated with the written consent of the employee. At the same time, he must be paid compensation in the amount of average earnings, which is calculated in proportion to the time remaining until the expiration of the notice of dismissal.

It must be remembered that in cases of violation of the procedure or deadlines for notification of reductions, the corresponding notification may be declared illegal.

We offer vacancies

Optimized employees should be offered other vacancies that the employer has available.

The employer is obliged to offer those vacancies that (taking into account the state of health):

correspond to the qualifications of the employee;

have a lower or lower paid character.

Keep in mind: vacancies that an employer has in another locality can only be offered in cases where this is provided for by the provisions of a collective or employment agreement - part 3 of article 81 and.

The employer is obliged to offer vacancies during the entire period of the staff reduction - see, for example, the conclusions contained in the Ruling of the Supreme Court of the Russian Federation of June 10, 2011 No. 20-G11-6 and paragraph 29 of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2.

We terminate employment contracts

Personnel optimization measures are formalized by a special order, which is drawn up in a unified form. At the same time, entries on dismissal due to staff reductions are made in work books. The basis is paragraph 2 of article 81 of the Labor Code.

On the last working day, the employee must be paid such payments as:

final payroll (including bonuses, allowances and other similar payments);

cash compensation for all days of unaccomplished vacation;

severance pay in the amount of average monthly earnings.

It should also be remembered that in situations where the employer, by agreement of the parties, dismisses the employee earlier than two months, the employee has the right to receive additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal. The basis is part 3 of article 180 of the Labor Code.

Employees retain their average monthly earnings for the period of employment, but not more than 2 months from the date of dismissal (including severance pay). Base - .

However, in order to receive the average earnings for the second month, the employee must submit to the employer:

a relevant statement

work book (it should not contain a record of employment at the end of the second month from the date of dismissal).

In addition, an employment or collective agreement may provide (part 4 of article 178 of the Labor Code of the Russian Federation):

other cases of payment of severance pay;

Increased severance pay.

On the last working day, the following documents must be issued to the employee:

· employment history;

· certificate of the amount of earnings for the last two calendar years.

Please note: the employee has the right to appeal the dismissal in the district court. To do this, he must file an application for recognition of the dismissal as illegal, reinstatement at work and the collection of average earnings during the forced absenteeism. The dismissed employee is given a month for this from the date of delivery of a copy of the relevant order, the issuance of a work book or the day when he refused to receive a dismissal order or work book. Moreover, the ex-employee is not obliged to insist on his own reinstatement. He may, for example, confine himself to demands for the recovery of average earnings for the time of forced absenteeism and a change in the wording of the grounds for dismissal.

Summary:

1. An order must be issued at the enterprise to reduce staff and introduce a new staffing table.
2. Notification in writing shall be sent no later than two months before the date of dismissal of the employee.
3. If members of the trade union fall under the reductions, then the employer is obliged to request a reasoned opinion of the elected body of the primary trade union organization. The trade union must submit such an opinion within 7 working days.
4. In the event of a reduction in staff or numbers, a priority right should be given to employees who have higher labor productivity and qualifications.
5. Laid-off workers should be warned about optimizing against a signature. Deadline - no later than two months before the date of dismissal of a certain employee.
6. Vacancies that an employer has in another locality may be offered only in cases where this is provided for by the provisions of the collective or labor agreement.
7. Personnel optimization measures are formalized by a special order, which is drawn up in a unified form. At the same time, entries on dismissal due to staff reductions are made in work books.
8. Employees retain their average monthly earnings for the period of employment, but not more than 2 months from the date of dismissal (including severance pay).
9. An employee can also receive sick pay in case of disability within 30 calendar days from the date of dismissal.
10. The employee has the right to appeal the dismissal in the district court. To do this, he must file an application for recognition of the dismissal as illegal, reinstatement at work and the collection of average earnings during the forced absenteeism.