Reducing the staff in an organization or enterprise is a rather unpleasant fact for employees. In such a situation, people tend to look for “intrigues of ill-wishers” in everything, and for this reason they are extremely wary of the management’s proposal to conclude a document on the agreement of the two parties, which will clarify all the nuances of the upcoming dismissal.
To understand this issue, you should study more closely the procedure for terminating an employment contract in both cases, and carefully weigh all the positive and negative points for both parties concerned (the employer and his employee).
When leaving, check if you have unused vacation days - the employer is obliged to compensate them. You can read more in .
The main differences between the two types of dismissal
In order to finally make a choice in favor of one or another type of termination of an employment contract, you can compare the main points of the procedure (sending notifications, and the possibility of withdrawing them, the timing of sending, accrued settlement funds).
Barkov E. A.,
Lawyer
All the grounds established by the Labor Code of the Russian Federation for the dismissal of employees at the initiative of the employer can be divided into two large groups: those related to the guilty actions of the employee and not dependent on the presence of guilt in his actions.
Today, the most massive type of dismissal of employees in the absence of their fault is dismissal due to a reduction in the number or staff of employees (clause 2, part 1, article 81 of the Labor Code of the Russian Federation).
For an employer, dismissal due to staff reduction is the most expensive procedure. Therefore, in many companies they prefer to fire in a simpler and cheaper way - on their own. If you do not want to quit on your own, do not agree to write a statement. If you are being pressured, try to gather evidence that you were forced to leave. Such evidence may be the testimony of witnesses, voice recordings, company documents, from which it is clear that massive layoffs are taking place in it. Another confirmation of your innocence may be the fact that your former position is either completely abolished or is still vacant.
All actions to reduce staff should be carried out after the employer determines the optimal number of employees. In order for the dismissal on this basis to be legal, the following requirements of the law must be observed:
- the fact of downsizing really should take place;
- the choice of employees dismissed due to staff reduction should be carried out taking into account the pre-emptive right to remain at work;
- written personal warning signature about the upcoming dismissal;
- possible transfer of an employee (employment);
- notification of the state agency on employment issues;
- consent of the trade union body;
- payment of severance pay.
Confirmation of the fact of reduction of staff is:
- Making appropriate changes to the staffing of the enterprise. The new staffing table should provide for a real reduction in staff (it is impossible to simultaneously introduce a new position into the staffing table instead of a reduced position, for which a new employee has been hired).
- Issuance of the Order on the approval of the new staffing table. The dismissal procedure cannot be carried out before the approval of the new staffing table.
On the preferential right to stay at work
The choice of employees dismissed due to staff reduction should be carried out taking into account the pre-emptive right to remain at work (Article 179 of the Labor Code of the Russian Federation).
The preferential right to stay at work is granted to employees with higher labor productivity and qualifications. As evidence of higher labor productivity, indicators such as performing a significantly larger amount of work compared to other employees, receiving bonuses and incentives, etc. are used. With equal labor productivity, those employees who have more
high qualification (level of education and compliance with the qualification requirements for a particular category of workers).
Special rights of certain categories of workers
Dismissal of employees is not allowed:
- during the period of his temporary incapacity for work and during his stay on vacation;
- pregnant women, as well as women with children under the age of three, single mothers raising a child under the age of 14 (a disabled child - up to 18), other persons raising these children without a mother (Article 261 of the Labor Code of the Russian Federation);
- under the age of 18, only with the consent of the relevant state authorities (Article 269 of the Labor Code of the Russian Federation).
It is necessary to take into account increased guarantees for employees who are members of elected trade union bodies (Art. 374; Art. 375; Art. 405 of the Labor Code of the Russian Federation).
The analysis of the preferential right to leave at work is carried out on the basis of diplomas, work books, data on the implementation of labor standards, certification data, and other documentary evidence of the quality of work. For each candidate for dismissal, an extract (personal file) is formed based on the documents listed above.
About the upcoming dismissal due to staff reduction, the employees of the organization are warned by the employer personally and against receipt at least two months before the dismissal (Article 180 of the Labor Code of the Russian Federation).
The employer, with the written consent (application) of the employee, has the right to terminate the employment contract with him without a two-month notice of dismissal with the simultaneous payment of additional compensation in the amount of two-month average earnings. (At the same time, “additional” means in addition to the severance pay established by labor legislation). It is mandatory to have an application with a request for dismissal with the date and personal signature of the dismissed employee.
The time of warning about the upcoming dismissal, as well as the consent of the employee to terminate the employment contract with him without warning of dismissal, must be documented. The signature of each dismissed employee must be on the general order on the planned reduction or on a separate order issued for this employee.
The dismissal of an employee is allowed in connection with a reduction in the number or staff, if it is impossible to transfer the employee with his consent to another job (Article 73 and Article 180 of the Labor Code of the Russian Federation). When carrying out measures to reduce the number or staff, the employer is obliged to offer the employee in writing another available job (vacant position) in the same organization that corresponds to the employee's qualifications (and not just performed taking into account qualifications). In the absence of such work - a vacant lower position or lower-paid work that the employee can perform, taking into account his qualifications and state of health. In the absence of such work (on the basis of the staffing table), as well as in the event that the employee refuses the proposed work, the employment contract with a particular employee is terminated. It is obligatory to have a written refusal (act of refusal) of the dismissed employee to transfer to another job with the personal signature of the dismissed employee.
The fact of dismissal is determined by the issuance of the Dismissal Order, which is signed after familiarization by each dismissed employee, and by making an entry in the work book: “Dismissed due to staff reduction, clause 2, part 1, art. 81 of the Labor Code of the Russian Federation.
The procedure for paying severance pay and compensation
The payment of severance pay in connection with the reduction in the number or staff of the organization's employees (part 2 of article 81 of the Labor Code of the Russian Federation) is regulated by art. 178 of the Labor Code of the Russian Federation. When an employment contract is terminated due to a reduction in the number or staff, the dismissed employee is paid a severance pay in the amount of the average monthly salary, and he also retains the average monthly salary for the period of employment, but not more than 2 months from the date of dismissal (with offsetting the severance pay). In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal (by decision of the employment service authority - a certificate confirming the fact that the employee has not yet been employed). If the employee did not apply to the employment service within two weeks after the dismissal, then the provision of Part 3 of Art. 178 of the Labor Code of the Russian Federation does not apply, since this requires the decision of the employment service authority.
Additional compensation in the amount of two months average earnings (i.e. in addition to the established labor legislation
severance pay) is paid if the employer, with the written consent of the employee, terminates the employment contract with him without giving notice of dismissal two months in advance.
An employment contract and a collective agreement may provide for other cases of payment of severance pay, as well as establish increased amounts of severance pay.
The accrual and payment of severance pay is carried out after the dismissal of the employee on the basis of payment documents with the obligatory personal signature of the dismissed person. If the dismissed employee is not for receiving the payments due to him, it is necessary to send a written notification to his address (a copy of the document must remain with the employer) about the payments due to him.
Documentary support of the staff reduction procedure
The staff reduction procedure should contain documentary evidence of the activities carried out:
- New staffing.
- Order on the approval of the new staffing table.
- Downsizing order.
- Action plan to inform the personnel of the enterprise about the ongoing activities.
- An extract (personal file) for each candidate for dismissal.
- Minutes (decision) of the commission based on the analysis of the pre-emptive right to leave at work.
- Signatures under the order to reduce staff, indicating the date of familiarization (2 months in advance).
- The act of offering the employee another job (position).
- An act on the refusal of the dismissed employee to offer another job (indicating the date and signature of the dismissed employee) - in case of disagreement.
- An act of agreement with the proposed work (indicating the date and signature of the dismissed employee) - in case of consent.
- Notification letter to the trade union body on the implementation of measures to reduce staff with copies of the documents that are the basis for the decision (staffing, order to reduce, etc.).
- The act of agreement or disagreement of the trade union body with the grounds presented by the administration.
- Protocol of disagreements (in case of additional consultations with the trade union).
- Notification letter to state employment agencies (3 months in advance).
- Dismissal order (with the date and signature of each dismissed employee).
- Payment documents with the signature of the dismissed employee on receipt of payments in accordance with the law.
- A copy of the notification to the employee about the need to receive payments due to him.
Cases of dismissal due to redundancy without an appropriate statutory procedure make up the majority of labor lawsuits. Usually won by employees. After all, it is enough to violate at least one point of the reduction action plan, and it will be considered invalid. That is why employers should know everything about how to properly carry out the redundancy procedure, and employees should know whether they were fired correctly or not. If they go to court, and the court proves them right, then the employer will have to pay wages for the time of forced absenteeism, however, only if the employee received a “white” salary before dismissal. You will also have to pay compensation for moral damage and reinstate the employee at work. In about half of the cases, the court takes the side of the employee, and the employer loses money.
From the point of view of legislation, the employee today is protected to a greater extent than the employer.
Also on this topic.
Staff reduction is a complex and multi-stage process that must be carried out in accordance with the requirements and conditions of the Labor Code of the Russian Federation. Each organization independently determines the structure and staffing, so a change in staffing can be carried out up to four times a year, if required by the boss. However, employees have their own rights, including early redundancy at the request of the employee.
Early dismissal at the request of the employee is not prohibited in the Labor Code of the Russian Federation
Let's consider the following questions on removing an employee from a position when changing the staffing table:
- Terms of dismissal in case of staff reduction.
- Dismissal at will.
- Compiling an application is your guarantee.
- Retirement with downsizing.
- Terms of termination of the employment contract and payment.
Conditions for dismissal in case of staff reduction
If the decision to reduce the number of employees or staff has already been made, vacant positions fall under liquidation in the organization, after which the number of employees is reduced.
Many employees of the organization who are to be fired may be subject to reduction, but some of them are protected by law (pregnant women, women with children under three years old, employees with underage children with disabilities, single mothers or single fathers with children under 14 years old). Reduction is allowed only if the employee does not have a pre-emptive right to remain in the position.
After the candidates for dismissal have been selected, the employer is obliged to notify everyone in writing of the upcoming reduction. This must be done two months before the official termination of the employment contract. Sometimes it is possible to carry out an early reduction at the initiative of the employee. This procedure has its own characteristics.
Voluntary dismissal
According to Article 81, paragraph 2 of the first part of the Labor Code, when reducing the number of employees, dismissal is allowed no earlier than 2 months from the date of written notification. However, sometimes there are cases when an employee wishes to terminate the employment contract ahead of schedule, because he has found a new job and does not want to lose this opportunity.
Early dismissal of one's own free will with a reduction is possible. In this case, the employee will be dismissed as in the usual application "of his own free will."
But this affects the calculation of the following payments:
- severance pay)
- payment of average earnings during unemployment)
- compensation.
An employer does not have the right to prevent an employee from leaving. In turn, the employee has the right to apply for a request to terminate the employment contract at any time. Nevertheless, there is a certain risk in this method of dismissal: the employee cannot count on the benefits provided to him under Article 81 of the Labor Code, Part 2 of Article 1. Thus, voluntary dismissal during reduction is fraught with a lack of severance pay.
- remember that termination of the contract is not mandatory until the period provided for by the reduction in staff has expired)
- the initiative to terminate the contract from a legal point of view is assigned to the boss, and the subordinate can only agree with him or not)
- the employee can act as the initiator of the termination of the contract and hope to provide all the calculations provided for in article 180.
Compiling an application is your guarantee
Voluntary dismissal during reduction deprives the right to certain payments
Competently drafting a letter of resignation plays a huge role. If an early reduction at the request of the employee sounds like a dismissal, then it will be calculated in accordance with Article 77 of the Labor Code, the first part, paragraph three. Thus, the employee is deprived of all compensation and benefits provided to him when he falls under the reduction. For this reason, the subordinate must be able to correctly state the essence of the statement. This will avoid litigation and other unpleasant moments.
The text may be something like this: “On September 10, 2013, I read the notice of being laid off on November 10, 2013 against signature and about my dismissal on this occasion no later than the appointed date. In this regard, I ask you to dismiss me on September 12, 2013 before the expiration of the period specified in the notice of dismissal in connection with my reduction and to make compensation payments due to me. In this case, dismissal can be made only with the consent of the employer.
Therefore, the desire of an employee to quit early must be expressed in writing. As often happens, during a period of mass layoffs, the employer is interested in dismissing employees at their “own will”, since in this case they will not have to pay compensation.
For this reason, different methods of psychological pressure on the employee can be used. Very often, an employee cannot stand it and quits of his own free will, and then goes to court to clarify the wording of the application and collect the due payments in case of early reduction, claiming that the boss forced him to write such a statement. But the duty to prove this fact lies with the employee.
During the trial, the reasons that prompted the employee to write a statement are investigated. This takes into account the circumstances and true intentions of the employee. When considering a claim, it is imperative to study the text of the application and indicate the mandatory details in it (date of writing, signature, date of receipt of the application by the head, resolution).
If the employee manages to prove in court that the letter of resignation was not “of his own free will”, that is, written under pressure, the termination of the employment contract will be declared illegal. Therefore, it is advisable for the boss to terminate the contract in such a way as to avoid litigation in the future.
Retirement with downsizing
According to Article 81 of the Labor Code of the Russian Federation, the first part of the second paragraph follows that the contract can be terminated by the employer with a reduction in staff or the number of subordinates. However, employees who have reached the pre-retirement age, whose employment contract was terminated as a result of the reduction, have certain guarantees:
- Citizens who have not reached retirement age and have an insurance period of 25-20 years and a mandatory period of service giving the right to early appointment of an old-age pension have the following benefits: mandatory monthly payments of benefits in connection with temporary unemployment during the year. At the same time, the period of payment of unemployment benefits should be increased, and in addition to the mandatory 12 months, another two weeks will be accrued for each year of work exceeding the insurance period.
- The employment service may offer a pension for the period until the retirement age, in accordance with Article 32 of the Employment Law.
- Upon reaching retirement age, a citizen has the right to be transferred to a pension.
Thus, early retirement due to downsizing is not such a problem.
Conditions for termination of the employment contract and payment
Dismissal of one's own free will with a reduction is fraught with the absence of severance pay.
After the new staffing table has been released, and employees have been notified of the upcoming reduction and dismissal, two months must pass before the employees are settled. Simultaneously with the written notice of dismissal, the boss must offer a transfer or notify the impossibility of transfer due to lack of vacancies.
Further, the employer is obliged to notify the trade union committee. To do this, he sends an example of an order and receives a response within a week. The employer must also provide the employee with the opportunity to look for a new job. To do this, he can provide additional time, and release a person from work for three hours a week.
After two months, the employee is dismissed and all mandatory compensation is paid to him. Also, against signature, the work book of the employee is issued and a corresponding note is made in the registration log. The employee is considered officially dismissed, and his case is transferred to the archive of the organization.
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 process of layoffs, 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"
Finding a job to your liking is not easy these days. However, even if you are very lucky and have such a job, no one is immune from losing it. You can be a good specialist, move up the career ladder, but at one fine moment hear the phrase: “You are being laid off.” Such a situation most often does not depend on the employee and is a necessary measure for an organization that is going through difficult times and has decided to optimize the staff.
The situation, of course, is unpleasant, but do not despair - you should meet the difficulties, armed with all the necessary information about your rights and guarantees in the event of such a dismissal. Of course, conscientious employers will always act within the law and comply with all the rules for reducing staff, but for your peace of mind, you should still know some of the subtleties of the procedure.
The main thing is to keep order
Retrenchment to reduce staff is not a one-day procedure. It must be done in a manner that respects the rights of the worker.
Having made a decision to reduce, the head issues an appropriate order, which necessarily indicates the date of the upcoming reduction, determines the list of positions to be excluded from the staff list, the date of termination of employment contracts, as well as the list of responsible persons for the implementation of all necessary actions.
After issuing the order, the employer is obliged to notify each employee subject to reduction no later than two months before the dismissal. The Labor Code (Article 180) obliges the employer to offer the redundant another job in the organization (if any) until the day of dismissal.
If the employer neglects this rule or hides available vacancies from the employee, then the employee has the right to apply to the court or the labor inspectorate. The law does not oblige the employer to explain to employees the reasons for the reduction, but in practice such a need arises in order to avoid mass unrest, waves of discontent and scandals.
Having received a notice of reduction, the employee signs it and either agrees to take one of the proposed positions, or refuses the voiced work options. In the first case, a transfer will follow, in the second, a dismissal.
In addition, in order to respect the rights of employees, the employer is obliged to report in writing about the planned reduction to the trade union organization (if any) and to the employment service authorities. And of course, the final stage of the procedure is the calculation and payment of severance pay.
No threat of dismissal
An important point in the downsizing procedure is taking into account the pre-emptive right of some employees to retain their jobs. Firstly, an employee cannot be fired at all during his period of temporary incapacity for work and during his vacation. Also, dismissal is not allowed:
- pregnant women, as well as women with children under the age of three,
- single mothers raising a child under the age of 14 (a disabled child - up to 18), other persons raising these categories of children without a mother,
- employees under the age of 18 (only with the consent of the relevant state authorities).
In addition, employers need to take into account that an employee who is the father of a large family, whose wife is not in an employment relationship and takes care of children, is actually the only breadwinner in the family and cannot also be fired due to staff reduction.
There is also a chance to stay in the workplace if several employees work in the same position, for example, two, and they reduce one unit. Then preference for staying at work should be given to an employee with higher qualifications and labor productivity.
As evidence of higher labor productivity, indicators such as performing a significantly larger amount of work compared to other employees, receiving bonuses and incentives are used. With equal labor productivity, the advantage will be for the employee who has a higher qualification - the level of education, the presence of an academic degree or academic title. And if these indicators are equal, so-called family circumstances are taken into account, for example, the presence of two or more dependents (disabled family members).
Preference is also given to those who do not have other employees in the family with independent earnings, employees who have received an industrial injury or occupational disease from this employer, disabled veterans of the Second World War and disabled combat operations for the defense of the Fatherland, employees who improve their skills on the job, aimed at employer training.
If this did happen...
If you do get laid off, the main thing is not to lose your temper. Today the labor market offers a wide range of vacancies for employment. Even if you have not previously been interested in supply and demand in the field of employment, they will help you navigate here.
Employment centers of the region, receiving notifications from employers about the upcoming release of employees, organize and conduct pre-dismissal consultations for the latter. In their course, citizens are not only introduced to the current situation on the labor market, but they also select suitable employment options on an individual basis.
You may also be offered vocational training or to improve your skills. This will give you a chance for even more successful employment.
It will be costly for the employer.
If you officially worked, received a white salary, you are entitled to fairly good financial compensation upon dismissal due to staff reduction.
The so-called severance pay is paid in the amount of the average monthly earnings. Also, you retain the average monthly earnings for the period of employment, but not more than two months from the date of dismissal.
In some cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal. This is decided by the employment service, which will have to issue a document confirming the fact that you are not yet employed.
To do this, within two weeks after the dismissal, you should contact the employment service. They will also help you find a new job and provide other guarantees.
Labor and collective agreements may provide for other cases of payment and increase in the amount of severance pay. In addition, at the final settlement on the day of dismissal, the employee receives wages and compensation for unused vacation.
Last but not least, pay attention to the correctness of the dismissal entry in your work book. Since the basis for termination of the employment contract is the initiative of the employer, a reference must be made in the work book to the relevant paragraph of the Labor Code.
