Under what article is the employee laid off. Maintained average earnings for the period of finding a new job

Date of: 13.10.2019

Sometimes the reason for the dismissal of one or more employees of the enterprise is not the decision of the employer or the employee himself, but an objective necessity. The situation may be related to the transition to a new (automated) level of production or the fact that the organization no longer needs the same number of employees. In such cases, there is a reduction in the number or staff of employees.

For the employer, this becomes a legal tool to optimize the composition of the staff and the staffing structure. However, the use of such an approach is associated with big amount nuances and requires compliance with many rules.

Basic concepts and terms

In order to understand the intricacies of the topic and understand who, how and under what circumstances can be fired if there is a reduction in staff, one should decide on the main concepts:

The number of employees is the number of all employees of the enterprise, in other words, it is the payroll. If we are talking about dismissing several representatives of the same profession who perform similar functions, while maintaining the position in the staff list, then this is a reduction in the number of employees. An example is the dismissal of three architects out of five.
The staff is absolutely all the positions represented in the company (management, administrative, workers, and others). Their list is a staffing table, in accordance with which the structure of the organization's personnel is formed.
Reducing the number of staff may be necessary in order to exclude from the list of posts that duplicate each other, or those that can be combined into one staff unit. Also, this concept includes measures aimed at eliminating any unit.

This means that the reduction in staff is accompanied not only by a decrease in the number of employees with the same responsibilities, but also by the dismissal of all employees performing specific labor functions. Returning to the example above, all five architects will be fired when the staff is reduced. Perhaps it is more profitable for the enterprise not to keep these employees on the staff, but to hire them from time to time to perform a separate task (outsourcing).

Layoff legislation due to downsizing

The legal aspects accompanying the rupture of labor relations due to changes in the staffing structure are regulated by the Labor Code of the Russian Federation. The reduction of the staff (due to the liquidation of the organization or the change of its owner) is discussed in article 81. Other common situations related to the termination of contracts with employees at the initiative of the employer are also listed here.

Among other cases, this article provides for the procedure for dismissal of employees:

Who can be made redundant

The decision on which the reduction in the number or staff of employees depends is made by the employer, but at the same time he must take into account the rights of employees who enjoy certain benefits.

When considering candidates for employees to be dismissed, the head is obliged to comply with the rule set forth in Art. 179 TK. It states that staff reductions should occur at the expense of the least qualified personnel, who have the lowest labor productivity rates. The practical implementation of this rule is often associated with an assessment of the experience and seniority of employees. It is assumed that those of them who have worked at the enterprise recently are of the least value for the team.

To assess the importance of an employee great importance also has the result of the qualifying exam, his education and the level of performance for the previous period. This means that when comparing two employees holding the same position, preference will be given to the one who has higher education. His colleagues, who have received secondary special education, are likely to be laid off.

Categories of personnel that are not affected by dismissal due to staff reduction

The reduction in the number of employees does not affect the following categories:

Parents of children with a disability status.
Mothers and fathers raising children on their own (singles).
Parents large families until such time as younger child will not be 14 years old.
Citizens who are the sole breadwinners of their families.
Workers who have been injured or ill as a result of their employment with the company.
Disabled people who suffered as a result of wars, the Chernobyl disaster or the Semipalatinsk tests.
Employees of the company with awards (Hero of the USSR, holder of the Order of Glory) or the title of inventor.
Employees who combine the performance of their labor functions with training.

The redundancy does not affect those employees who are members of a trade union or act as elected representatives of the work team and take part in negotiations with the company's management.

Also, employees of the enterprise who are on sick leave, on regular or maternity leave cannot be dismissed. True, this can be done with their written consent or with the complete liquidation of the company.

How to reduce pensioners and part-time workers

The Labor Code of the Russian Federation (Article 3) contains a ban on the manifestation of age discrimination by an employer. Most often this applies to employees who have reached retirement age and continue to fulfill their official duties. If necessary, they will also be affected by layoffs, but it is against the law to use their social status as grounds for dismissal.

Taking into account the experience and qualifications of pensioners, on the contrary, they fall under the definition of employees with preferential rights. Based on the fact that they can be one of the most useful employees of the enterprise, they are the last to be laid off.

When planning the dismissal of an employee who combines two positions, the employer performs almost all standard actions. The only difference is that the legislation does not establish whether he should accrue payments to such an employee.

In fact, redundancy benefits are necessary for those who lose their source of income. However, while remaining in the company, the part-time worker continues to receive wages. Here, the decision on payments and their size remains with the employer.

Why do employers resort to layoffs?

The state allows the heads of enterprises to independently decide on the need to reduce staff or the number of personnel. However, in case of disputes, the economic feasibility of these measures can be checked by the judicial authorities.

This condition imposes on the employer the obligation to inform his subordinates about why the reduction in the staff is being carried out. This information is set out in the relevant order and may be associated with the following factors:

With a low level of profitability. The lack of profit does not allow the management to pay at the proper level for the work of the previous number of employees. By reducing labor costs, the organization can save some money to pay off debts or purchase a new batch of materials.
Inefficient state structure. If among the positions of the organization there are those that duplicate each other or are not of value for maintaining economic activity, their elimination would be justified.
Introduction of new technologies or equipment. When production becomes more automated and does not require the participation of the previous number of employees, staff reduction can significantly reduce costs and increase profitability.

What rules should an employer follow when laying off staff?

The forced layoff procedure can significantly affect the well-being of those employees who are subject to redundancy. It is not always possible for them to find workplace under the same conditions as in this enterprise. For this reason, the state dictates to managers certain conditions, the observance of which to a certain extent protects the interests of laid-off workers:

In the event that the company's management "forgets" to inform the employment service of their intentions, in addition to fines, the court may oblige them to pay wages to employees for forced absenteeism.

How the downsizing happens: step by step instructions

Any head of a company or organization, when planning and carrying out measures to reduce staff, must know and comply with all legislative norms and requirements. Ignoring or unintentionally breaking one or more rules can lead to quite serious consequences: a fine or a trial.

Based on this, the employer is interested in implementing a phased reduction in staff (the Labor Code of the Russian Federation establishes a list of necessary documents and procedures):

In the event that the employee does not agree to the transfer and continuation of cooperation with the company, the last in the list of required documents is the order to dismiss him. The unified form T-8 is recognized as common for this document.

How a redundancy termination ends: vacation pay, severance pay

The dismissal of an employee who was informed in time and refused the offered vacancies takes place simultaneously with the payment of all necessary funds to him.

Together with the work book, the former employee is given:

Salary accrued for the last worked period.
Compensation payments for unused vacation (if any).
Special payments for downsizing (severance pay). Their size is often equal to the average wage, but may be higher if this is specified in the collective agreement.

The company continues to pay redundancy benefits to the employee for another two months if he is registered at the labor exchange, but cannot find a job. Its size is set at the level of the average salary, but it does not take into account the amount that has already been issued.

In the event that an employee wishes to quit earlier than the deadline set by the employer, he must be paid the money accrued for the unfinished time. That is, in fact, in any case, he will be paid a two-month period between the announcement of the reduction and the date on which this procedure is scheduled.

Payments to certain categories of personnel

The procedure for reducing some workers is slightly different from the one outlined above. This is due to the non-standard nature of their work functions or special circumstances:

For those workers whose duties are considered seasonal, redundancy payments amount to an amount equal to the average salary for two weeks.
Employees of organizations located in the Far North are given a one-time severance pay and an average salary for three months (if they are not employed earlier).

What will be indicated in the work book

According to Art. 81 of the Labor Code, the reduction in staff is indicated as the basis for terminating the employment contract in the employee's work book. It is issued on the day of dismissal along with the accrued amount of money. Upon receiving them former employee the enterprise signs in several documents (personal card, book of accounting for the movement of work books, insert).

Certification of the record that employment contract torn, the signature of the employee of the personnel department (who maintains work books) and the dismissed employee becomes, as well as the seal of the head.

What should be the behavior of the employee during the reduction

When a person receives notice that they are going to be laid off, they should take the following actions:

Make inquiries about the list of persons who are not entitled to be fired and find out if he falls into this category. In the event that they discover any factor that gives them the right to privileges or benefits, this should be stated in a letter and transferred to the head. The best option It is considered that the letter is written in two copies. One of them is given to the management with a request to mark the receipt on the second. This will be useful evidence in favor of the employee if the case goes to court.
Make demands regarding an alternative place of work in this enterprise. The employee does not have to agree to the offer, but the employer's written refusal to provide vacancies can also be the basis for canceling the decision to reduce.
To receive additional payments, you must register with the employment service within a period of no more than two weeks after the reduction in staff was carried out. The Labor Code of the Russian Federation specifies this period. Then the worker is entitled to a two-month allowance (average wage) if he fails to find a new job.

Most important aspect concludes that the employee should not himself write a letter of resignation after he becomes aware of the upcoming reduction.

Also, do not succumb to the persuasion of the boss and compromise, because dismissal by agreement of the parties does not provide for the payment of severance pay.

Professions at risk

Given the difficult economic situation, cuts can affect a fairly wide range of companies and organizations. Doctors and teachers may not be afraid for their jobs, but many firms will still undergo reorganization.

Among employees of budgetary enterprises, funding for the following professions may be limited:

Employees involved in the telecommunications industry.
Librarians.
Postal employees.
Mosgostrans employees.
Reduction of staff of the Ministry of Internal Affairs.

In addition, some employees of state and commercial banks will have to look for new jobs.

Experts say that against the backdrop of such a disappointing situation and in the absence of wage increases, many highly qualified personnel will leave on their own initiative. Without waiting for the reduction, they will master new relevant professions or seek application for their talents in other countries.

The reduction can be carried out by reducing the number of employees, or reducing staff units. This procedure is carried out to optimize the work of the enterprise. The leader has two options:

Remove unnecessary positions from the staff list.
Reduce the number of employees in positions.

The general principle looks like this:

the leader makes the decision;
the order must be issued two months before layoffs, if they are massive, then the period is increased to three months;
a new staffing table is being prepared and approved. Important. It is impossible to dismiss for reduction without exclusion of posts from the staff and approval of its amended version;
the employment service is notified about the upcoming event (part 2 of article 25 of Law No. 1032-1 of 04/19/91);
priorities are set in the selection of employees who will remain working.

The Labor Code of the Russian Federation establishes a list of persons who cannot be dismissed by reduction, and persons who fall under the procedure in the first place (Article 279, Article 161).

Labor Code of the Russian Federation, Article 279. Guarantees to the head of the organization in the event of termination of the employment contract

In case of termination of the employment contract with the head of the organization in accordance with paragraph 2 of Article 278 of this Code, in the absence of guilty actions (inaction) of the head, he is paid compensation in the amount determined by the employment contract, but not less than three times the "average monthly earnings", except for the cases provided for by this Code.

Labor Code of the Russian Federation, Article 161. Development and approval of standard labor standards

For homogeneous work, standard (intersectoral, sectoral, professional and other) labor standards can be developed and established. Model labor standards are developed and approved in the manner prescribed by the authorized Government Russian Federation federal executive body.

The following categories are fired first:

employees are pensioners;
employees who do not have much experience and work experience;
workers who have poor performance, frequent comments.

minors;
pregnant women;
women on maternity leave;
women with children under three years of age;
single parents with a dependent child under the age of 14;
people with a disabled child.

Important. It is possible to reduce a maternity position only after the main employee starts working (the exception is the complete liquidation of the enterprise) (Article 256 of the Labor Code of the Russian Federation).

After the selection of persons who will be subject to reduction, they must be notified of this in writing under painting.

the possibility of replacing alternative posts. When there are vacant positions in the company, the boss must offer them to the dismissed persons;
order to terminate the employment contract, its registration. Important. The employer cannot dismiss an employee during vacation or sick leave (Article 81 of the Labor Code of the Russian Federation);
final payment of employees.

On the day of dismissal, employees are paid settlement, all compensations stipulated by law.

A work book with a corresponding entry and other certificates are issued at the request of the dismissed person.

Reference. When people are threatened with layoffs, you should not immediately quit and rush in search of a new job. When dismissed in this way, the employee is entitled to fairly solid payments.

Therefore, it is worth waiting for this moment, and only then look for a new place.

Responsibilities of the employer in case of layoffs

The manager has no right to fire employees just like that. All norms and requirements of the Labor Code of the Russian Federation must be observed. So, what is the employer obliged to provide when reducing?

Employment

If the company does not completely cease to exist, then the employee must be offered any other vacant position.

Upon dismissal due to redundancy, the employer must within two months, in case of a vacant vacancy, notify about this reduced employee.

final settlement

In case of reduction, the employer is obliged on the day of dismissal pay all outstanding payments(Article 140 of the Labor Code of the Russian Federation):

full payment upon dismissal (including compensation for unused vacation);
severance pay (the amount is the average monthly salary);
a person receives an average salary within two months after dismissal, and when applying to the employment service - three months (an exception is employment during this period);
issuance of required documents.

Labor Code of the Russian Federation, Article 140. Terms of calculation upon dismissal

Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed.

If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than next day after the laid-off employee presents a demand for payment.

In the event of a dispute about the amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article.

On the day of dismissal, when an employee is made redundant, the employer must give completed work book .

The organization is obliged to issue other certificates on labor activity on the basis of a written application.

Liability for non-compliance

If the manager violated the rights of employees when reducing the number or staff, he will be brought to administrative, disciplinary, and in some cases criminal liability (Article 419 of the Labor Code of the Russian Federation).

Labor Code of the Russian Federation, Article 419. Types of liability for violation of labor legislation and other acts containing norms labor law

Persons guilty of violating labor legislation and other acts containing labor law norms are subject to disciplinary and “financial” liability in the manner prescribed by this Code and other federal laws, and are also brought to "civil law", "administrative" and "criminal" liability in the manner prescribed by federal laws.

All actions of the manager must be reflected in the documentation in accordance with the law, and employees are notified against signature of the upcoming reduction.

In case this did not happen, a person can demand that their rights be respected in court. The law is always on the side of employees in these cases. The employer will be obliged to reinstate the citizen in his position, as well as pay him lost profits and moral damage. (Articles 234, 237 of the Labor Code of the Russian Federation).

Labor Code of the Russian Federation, Article 234

The employer is obliged to compensate the employee for the earnings not received by him in all cases of unlawful deprivation of his opportunity to work. Such an obligation, in particular, arises if the earnings are not received as a result of:

illegal removal of an employee from work, his dismissal or transfer to another job;
the employer's refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee in his previous job;
delays by the employer in issuing a work book to an employee, entering into the work book an incorrect or inconsistent wording of the reason for dismissal of an employee.

Labor Code of the Russian Federation, Article 237. Compensation for moral damage caused to an employee

Moral damage caused to the employee by unlawful actions or inaction of the employer is compensated to the employee in cash in the amount determined by agreement of the parties to the employment contract.

In the event of a dispute, the fact of causing moral damage to an employee and the amount of its compensation are determined by the court, regardless of the property damage subject to compensation.

In addition, an administrative fine from 30 to 50 thousand rubles will be imposed on a negligent employer for legal entities, up to 5 thousand for individuals and officials, and if the violation is not committed for the first time, then criminal liability is also possible (Article 5.27 of the Code of Administrative Offenses).

Delay or refusal to pay due compensation also threatens the employer with a large fine and suspension of the enterprise.

The organization will be obliged to pay employees a calculation with interest for each day of delay (Article 236 of the Labor Code of the Russian Federation).

Moreover, for a long non-payment of wages and other mandatory benefits and compensations (more than two months), criminal liability is provided (Article 145.1 of the Criminal Code of the Russian Federation).

Labor Code of the Russian Federation, Article 236. Liability of the employer for the delay in payment of wages and other payments due to the employee

If the employer violates the established “term”, respectively, for the payment of wages, vacation pay, dismissal payments and (or) other payments due to the employee, the employer is obliged to pay them with interest ( monetary compensation) in the amount of not less than one hundred and fiftieth of the key rate of the Central Bank of the Russian Federation in force at that time on the amounts not paid on time for each day of delay starting from the next day after the established payment deadline until the day of actual settlement inclusive.

In case of incomplete payment of wages and (or) other payments due to the employee on time, the amount of interest (monetary compensation) is calculated from the amounts actually not paid on time.

The amount of monetary compensation paid to an employee can be increased by a collective agreement, local normative act or an employment contract. The obligation to pay the specified monetary compensation arises regardless of the fault of the employer.

Important. If the employee believes that the employer has violated his rights, you should file a complaint with the following authorities:

trade union (if any);
labor inspection (located at employment services);

Litigation is the last resort As a rule, in case of disagreements with the employer, all disputes are resolved with the involvement of trade unions and the department for the protection of workers' rights.

It is better to comply with all the obligations of the employer when reducing staff under current law. Violation of the rights of employees can lead to serious troubles and financial losses. Judicial practice shows that in such situations, authorities always take the side of workers.

A considerable number of documents will have to be issued by the personnel officer if the organization is undergoing a procedure for reducing the number or staff. At the same time, there are documents that he will have to draw up in any case, and there are those that are drawn up only in some situations, but also quite often.

Main content of documents

As the theater begins with a hanger, so “organizational” actions begin with an order, on the basis of which reduction measures will be carried out and drafted Required documents. The reduction order (and / or staff) must contain the date of the proposed reduction, since the employer is obliged to notify employees who will be affected by this at least two months in advance. Having looked into the resolution of the State Statistics Committee of 01/05/2004 No. 1 “On approval of unified forms of primary accounting documentation for accounting for labor and its payment” and making sure that there is no standard form for such an order, we draw it up in any form (see Example 1).

Read about the reduction procedure through the eyes of judges in the article "The procedure for reducing the staff of an organization: judicial practice"

For your information

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Downsizing and downsizing are two different things. When the staff is reduced, the position or profession (for example, driver) is excluded from the staff list. By reducing the number, the personnel officer only reduces the number of staff units that occupy a certain position (or work by profession). At the same time, the position (profession) itself remains (for example, there were five drivers, and after the reduction in their number, two remained).

Therefore, in practice, there may be:

downsizing and downsizing;
downsizing (when only vacancies are excluded from the staff list);
downsizing.

Example 1

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The next step is to draw up notices of the upcoming reduction for employees (see Example 2) and the employment service (see Example 3). Employees should be notified in writing and under a personal signature no later than two months before the planned termination of the employment contract; if the dismissal is massive, then at least three months in advance (Article 180 of the Labor Code of the Russian Federation).

To notify the employment service orders paragraph 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 "On employment in the Russian Federation". This must also be done no later than two months before the start of the reduction (if the layoff is massive, then at least three months in advance), indicating the position, profession, specialty, qualification requirements and conditions of remuneration of workers. Criteria mass layoffs are determined in sectoral and (or) territorial agreements. If they are not in the relevant agreements, one should be guided by the Decree of the Government of the Russian Federation of February 5, 1993 No. 99 “On the organization of work to promote employment in conditions of mass release”.

The law does not specify which territorial body should be notified - at the place of registration of laid-off workers or at the location of the employer. However, the Decree of the Moscow City Statistics Committee of May 26, 1997 No. 4 “On Approving the Form of Regional State Statistical Observation” approved the form according to which information on employees laid off in the process of reduction (liquidation of the organization) should be submitted to the employment service at the place of registration of the organization. See Example 3 for an example of filling out the form. In other regions, forms approved by local authorities statistical observation. If there is no approved form, the notification can be drawn up in any form (see Example 4).

Example 2

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Example 4

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Since the unemployment benefit for the laid-off worker will be calculated based on the average earnings received by him over the past three months, the employment service requires the provision of a relevant certificate from the place of work. As a sample, you can take the form of a certificate of average earnings, approved by order of the UGSZN of the city of Moscow dated August 10, 2007 No. 172.

Learn more about compiling a certificate of average wages for employment agencies, read the article "We issue a certificate for the employment service" on page 44 of magazine No. 9 "2012

On the last working day (aka the day of dismissal), the personnel officer fills out an order to dismiss to reduce the number and / or staff in the form No. T-8, approved by the Decree of the State Statistics Committee of Russia dated 05.01.04 No. 1 (Example 5), and makes an entry in the work book (Example 6). The final settlement of wages and other payments due to him on the date of dismissal is carried out with the employee (part 4 of article 84.1 of the Labor Code of the Russian Federation).

Example 5

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Example 6

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What else might be needed

What other documents in some cases will have to be issued by the personnel officer during the reduction? So, if the employee refuses to sign the notice of reduction, an act should be drawn up (see Example 7). This paper is drawn up in the presence of two witnesses and is proof that the employee was notified of the upcoming dismissal.

In addition, if an organization has an elected body of a primary trade union organization (hereinafter referred to as PPO), it is required by law to notify it as well (Example 8). According to Art. 82 of the Labor Code of the Russian Federation, this must also be done no later than two months (in case of mass layoffs of workers - at least three months) before the proposed dismissal.

If the employee being laid off is a member of a trade union, then the notification should be sent to the elected body of the PPO before the issuance of the order and a reasoned opinion should be requested in the manner prescribed by Art. 373 of the Labor Code of the Russian Federation.

In conditions when an employee is simultaneously the head (deputy head) of an elected collegial body of the PPO, an elected collegial body of a trade union organization structural unit enterprises (not lower than the workshop and equated to them), it is possible to dismiss him only with the prior consent of the relevant higher elected trade union body (Article 374 of the Labor Code of the Russian Federation).

Every business owner tries different ways optimize the work of your company, which increases labor productivity, the efficiency of each employee and reduces costs, which ensures an increase in profits. In crisis situations or other difficult cases, layoffs are often required. For every employed citizen, such a process is a stressful situation, as he has to face the loss of an attractive and well-paid job. Therefore, you should know what rights a citizen has, as well as what obligations employers have.

Legislative regulation

Reduction in the work of specialists should be carried out only taking into account the numerous requirements of the law. This process leads to lower costs for the enterprise, and often improves productivity. But the loss of a qualified and experienced professional often leads to disastrous results for the firm.

Often, organizations with a deterioration in their financial condition use layoffs at work. The rights of all citizens who undergo this procedure are contained in Art. 180 TK. This legislative act states that the procedure can be carried out only with the preliminary formation of the relevant order. It prescribes the basis for the reduction of specialists, their positions and full names, as well as the date of dismissal.

Reasons for the reduction

This procedure used by many business owners. The most common reasons for this are:

closure of the company, and in this case, all specialists officially employed at the enterprise are dismissed;
reorganization of the company, so it begins to work in a new direction, which leads to the need to hire new specialists, but past employees become unclaimed;
the company is in financial difficulties, so it is on the verge of bankruptcy and to improve the situation it is necessary to reduce costs, which can be done by reducing labor costs.

For some companies, laying off a certain number of employees is the only option to avoid bankruptcy proceedings, since due to the large staff, labor costs are significant.

The employer must draw up an order, since on the basis of it a reduction is made. This document must contain real reasons using this method of breaking labor relations with specific specialists.

Downsizing process

Initially, a decision should be made to lay off work. The rights of an employee must be taken into account by each employer, since if they are violated, citizens can apply to the labor inspectorate to receive compensation or cancel the reduction.

The procedure itself is divided into successive stages:

a decision is made by the management team, on the basis of which some positions are removed or specialists are simply replaced;
an order is drawn up, and it must be issued two months before the direct reduction;
this document contains information about all citizens with whom the contract will be terminated;
if it is supposed mass reduction at work, it is required to warn employees about this three months before the direct termination of contracts;
a new staffing table is formed and approved;
about the upcoming process, it is necessary to notify the employment service, which is indicated in Art. 24 FZ No. 1032-1;
it is revealed which employees should be fired in the first place, and who cannot be fired for any reason;
all citizens with whom labor relations will be terminated are notified of the upcoming event two or three months in advance, and they must sign the notification document;
when determining who exactly will be fired, the preferential right to remain at work with the reduction of various specialists is taken into account;
contracts are terminated at the appointed time, the due funds are paid to citizens, and the necessary documents are issued to them.

Thus, the procedure is considered quite complicated, and is also necessarily controlled by the employment service workers.

Who gets fired first?

First of all, the following employees are fired from work to reduce:

citizens receiving a labor pension, but continuing to work officially;
employees who do not have significant experience, so their value is not considered too high;
people who showed a poor indicator of labor productivity during work;
citizens who have numerous comments on work or labor discipline.

Workers selected by management for redundancies cannot refuse to be fired, but they receive significant benefits even after the termination of employment, so it is not uncommon for them not to find a new job after a layoff for several months. Also, if their rights are violated by the employer, such a decision can be challenged through the courts.

Suggested Alternative

Often there are vacant positions in the company, so the head of the company, before laying off employees, must offer them the opportunity to get these positions.

If they refuse offers, the refusal must be recorded in writing.

It is not allowed to dismiss citizens who are on vacation or on sick leave under Art. 81 TK.

Employer's obligations

Running any company is hard work. Retrenchment is usually a forced procedure resorted to by managers who are faced with serious financial problems of the company. But at the same time, the entrepreneur has certain responsibilities. And they should be taken into account when laying off workers. These include:

in Art. 181 of the Labor Code states that employees should be offered other positions that correspond to their specialty and experience, if any. vacancies in company;
all citizens must be warned about the reduction two months before the process, and the employees themselves will certainly sign in a special notice;
the actions of the employer must be coordinated with the trade union committee, and the members of this organization must be provided with lists of employees who will be reduced;
in addition, there is a need to notify the employment service of all the measures used, on the basis of which the dismissal of a certain number of employees is expected, and such a notification is sent two months before the actual process.

In Art. 81 of the Labor Code states that the reduction of any employee implies the termination of the employment contract. Initiator this process the employer himself.

Process Nuances

In a serious crisis situation in a company, layoffs are often applied. The rights of the employee himself are in different points:

he is notified of the intentions of the management staff by a special written notice, on which he puts his signature;
allowed to express their opinion on this issue;
it is allowed to transfer to another position that is free in the company at the time of the reduction;
the head is obliged to offer several options for employment, so the citizen himself chooses the position and features of the work, and if there are no suitable options, then a reduction is drawn up;
It is not allowed to dismiss an employee without prior notice of two months.

If any violations are detected on the part of the company's management, the employee can file a complaint with the labor inspectorate.

Who can't be fired?

Some employees have the right of preferential retention at work in case of staff reduction. They are the last to leave. These include:

people with high level qualifications, so their labor productivity rate is much higher given value other employees of the enterprise;
pregnant women, as well as people on parental leave;
citizens who are the sole breadwinners in the family;
people who have dependents from two citizens recognized as incapacitated, they can be represented by disabled people, minors or elderly people;
employees who received in the course of their work any Occupational Illness or injury;
citizens who improve their skills taking into account the direction of the enterprise.

If within two months after the dismissal a person cannot find a job, then he receives compensation from the last place of employment in the amount of average earnings. To do this, it is required to register with the employment service within one month after the termination of the contract.

Why is union involvement required?

Trade unions are still organized at many enterprises, the main purpose of which is to protect the rights of citizens. Therefore, all the people included in them perform the following actions:

control the correctness of the implementation of various activities by the employer, the main purpose of which is the reduction of staff;
contribute different offers, on the basis of which the reduction procedure is changed;
offers options to prevent layoffs of workers.

If a citizen is sure that the employer violates his rights, then he can apply to the labor inspectorate or trade union to obtain free consultation experienced lawyer.

What guarantees do they offer?

The reduction takes into account the different guarantees that should be offered to employees. These include the following:

if a person has the right to remain at work during a reduction, then he cannot be dismissed if there are employees who do not have this right;
each reduced employee is paid a severance pay equal to the average earnings;
the person retains the average salary for two or three months after the dismissal, which are given to him for free job search, but it is important to be registered with the employment service as unemployed;
the citizen is notified in advance of the dismissal.

If these guarantees are violated, then this is a significant violation on the part of the management of the company, therefore it is possible to apply to the director different measures punishment by the labor inspectorate or the court.

What payments are made?

Often people leave due to layoffs. In this case, payments are appointed by the employer in the following forms:

salary for all days worked;
compensation if there are unused vacation days;
severance pay, which is equal to the average earnings in the company;
if a citizen worked in a company where the work is seasonal, then his allowance is equal to earnings for two weeks of work.

Severance pay is calculated taking into account the salary received by a citizen for two years. If within the next two months the dismissed specialist does not find the optimal place of work, then the former employer must pay him funds equal to his average earnings while working in the company.

Compensation instead of notice

If the employer did not have time to notify the employee of his reduction in time, then he can pay compensation instead. It is calculated as a two-month average salary of a specialist in the company, if there is no notification at all.

If a document is submitted late, then when calculating this payment, the actual days remaining until the immediate date of the citizen's dismissal are taken into account.

The transfer of this compensation does not serve as a basis for exempting the employer from paying severance pay. Also, the employees themselves decide whether they will accept this proposal or not.

What to do in case of illegal reduction?

If during this process the conditions of the Labor Code are violated, then employees can file a complaint with the labor inspectorate. Based this document employers are brought to administrative responsibility, expressed in the need to pay fines. Their size depends on the identified violations.

It is allowed to appeal the reduction through the court, and the claim must be filed within one month after the dismissal. The claim is satisfied if there is official evidence of illegal actions on the part of the employer.

Thus, the reduction of any employee is a specific procedure that must be carried out in correct sequence actions. In this case, all the rights of citizens must be taken into account. If they are violated, employers are held administratively liable. Violations in the terms of notification can be compensated by correctly calculated compensation. At the same time, employees can challenge their reduction if there is evidence of illegal actions on the part of the company's management.

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

Headcount optimization

To begin with, it is necessary to understand the main theoretical issues that are affected by the reduction procedure.

Understand the difference between downsizing and downsizing. So, the number of employees is recognized as the entire list of employees specific enterprise. If we are talking about a reduction in the number of employees, then the number of employees in a certain position decreases. For example, it is necessary that there are two engineers in the enterprise instead of the current ten.

It is customary to refer to the staff of employees all employees of the managerial and administrative level at a particular enterprise. When reducing staff, the same positions or employees of the entire reduced unit should be excluded from the staffing table. When it comes to reducing a certain staff unit, then not one employee quits, but everyone who staffing perform work in a particular position.

Legislative grounds

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

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

In addition, in accordance with Article 179 of the Labor Code of the Russian Federation, it is necessary to observe the right of some employees (for example, a pregnant woman and those who have higher qualifications) and the reduction order. It is obligatory for an employee who is notified of the upcoming reduction to be provided with alternative vacancies (if any at the enterprise) taking into account his abilities, qualifications and state of health.

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

Employee redundancy payments

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

In the event that the employee to be reduced has read the document, but categorically refuses to sign under it, a special document must be drawn up that reflects this fact.

During the time from acquaintance to dismissal, the employee should be offered other vacant positions in accordance with his skills and abilities. If he refuses the proposed options, then after two months the employment contract is terminated. The next step after the termination is the final settlement with the employee.

severance pay

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

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

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

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

The amounts due to the employee as a severance pay, on the basis of paragraph 3 of paragraph 217 of Article 217 of the Labor Code of the Russian Federation, are not taxed, except for the case when the amounts of payments exceed 3-month average earnings.

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

In the amount of average earnings must be taken into account:

Premium and bonus payments, remuneration. No more than one type of additional remuneration for one month during the calculated period is taken into account. If there are more bonus amounts, then you can take them into account in the month where they were not;
Remuneration at the end of the year, in connection with the length of service, length of service, etc.;
Other payments included in the amount of monthly earnings.

The main rule of action to withdraw the amount of average earnings: it should not be lower than the subsistence minimum threshold established in the country on the day of dismissal.

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

The following periods are not taken into account in the calculation of the average monthly earnings:

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

Earnings include all payments from the employer, including bonuses, in-kind products, and other payments.

Compensation

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

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

Second and third month

If you are on a redundant or redundant layoff, then know that you have the right to keep your average earnings for the next two months after the day you were officially fired. This rule is valid until the moment of official employment, but no more than two months after dismissal. Thus, the unemployed person has some guarantees provided for him by the state, in order to provide him with a certain amount of money until he gets a new job.

If an employee, within two weeks after the dismissal, applied for employment at the Employment Center, then he can count on one more month of subsidies from the former employer (in case he did not find a job).

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

Pensioners

Persons who have reached retirement age and are laid off, Labor Code in 2019, there are no special features for payments.

So, a retired pensioner can count on:

The severance pay, which is equal to the average earnings for the month. If the local regulatory act of the employer provides for several larger size, then the pensioner should receive exactly this amount.
Compensation of average earnings for two (three) months while the search is in progress new work.

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

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

How to get a?

Decor

Based on current legislation, all settlements with the employee regarding wages for hours worked and severance pay must be processed and made on the last day of work of the employee who fell under the downsizing. At the same time, before that day, he must submit a bypass sheet drawn up according to the rules with information that he has no debts to the enterprise.

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

In this case, the employee must confirm his words with documents (provide a certificate from the Employment Center, demonstrate a work book). Only after that, the employee of the settlement department can proceed with the processing of payments. If such documents are not provided, then no compensation is provided.

Where are they paid?

All payments due to an employee who has fallen under the reduction are paid by the employer at the place previous work employee.

So, if it is necessary to compensate for the time spent looking for a new job within two calendar months after the dismissal, then it is necessary to apply with the relevant documents to the department dealing with payments at the previous place of work, from where the person was dismissed.

If it is necessary to make payments for the third month, then you need to contact the same employer, but you should have a certificate from the Employment Center with you. IN modern world it is very important to know your rights, especially if they affect the sphere of labor relations, as employers often take advantage of the illiteracy of their employees. If you have been laid off and do not know what to do and how to go through this procedure, then contact a competent lawyer who will help you and tell you what to look for when making a layoff, as well as indicate what payments and rewards you can expect.