Labor code dismissal to reduce. Personnel categories that do not concern dismissal due to staff reduction. Reducing workers in labor code

Legislative consolidation of the state reduction procedure is carried out by 2 Art. 81 of the Labor Code of the Russian Federation, which is devoted to the issues of dismissal.

In addition to the need to comply with the established procedure for this procedure, the employer should also take into account the circle of subordinates and know, as well as those who have a preferential right to preserve position. Therefore, it is worth considering the rights that are provided to employees in the reduction of states.

An important condition for the legality of dismissal on such a basis as the reduction of states is to comply with the established sequence of actions.

At the same time, the absence of the previous position due to its reduction is not the reason for refusing an employee in the implementation of its right and the adopted court decision. The employer must first cancel the reduction conducted earlier or enter this position again, and then restore employee on it.

Adjustment of the standard schedule

First of all, it is necessary to develop a reduction plan and prepare an order for amending the staffing of a construction company.

Guarantees of legislation

Preparing appropriate documents, it is necessary to remember that some categories of workers in the reduction of the state have the priority right to be left at work, and some cannot be reduced in principle.

The predominant right is provided to employees with higher productivity and qualifications. This is defined in Article 179 of the Labor Code of the Russian Federation.
With the equal productivity and qualifications, preference is given:
- family - with two or more dependents;
- persons who have no other employees with independent earnings;
- employees who received labor injury or occupational disease during work in this company;
- disabled people of the Great Patriotic War and disabled hostilities;
- employees who increase their qualifications in the direction of the employer without separation from work;
- other categories of workers, whose preemptive right is defined in a collective agreement.

Who can not cut. The contract is not allowed to terminate the employer's initiative in connection with the reduction in the number or staff with the following employees (Art. 261 of the Labor Code of the Russian Federation):
- pregnant women (allowed the dismissal of pregnant workers, if she was adopted during the fulfillment of the duties of the missing employee and there is no possibility to translate it to a vacant position);
- women having children under three years old;
- single mothers raising a child under the age of fourteen (a disabled child - up to eighteen);
- Other workers raising the specified children without a mother.
It is also impossible to reduce employees during the disease and during the stay on vacation (Art. 81 of the Labor Code of the Russian Federation).
In practice, the question often arises: is it possible to cut a person who is on the probationary period? Yes, you can. After all, such workers are subject to all the rules of labor law relating to ordinary staffing workers.

Notification of the upcoming reduction

Notify about the upcoming reduction, the company is obliged not only by workers, but also the employment service.
Employees should be warned about the upcoming dismissal personally and on receipt of at least two months before the expected date of dismissal (Art. 180 of the Labor Code of the Russian Federation). Officially, the form of such notifications is not approved, so it is possible to make it in any form.
At the same time, the company with the written consent of the employee has the right to terminate the employment contract with him and earlier - before the expiration of a two-month period. However, in this case, the employee will have to pay additional compensation in the amount of average earnings calculated in proportion to the time remaining until the end of the term.
Please note: the notification time can be different.
Thus, workers who have entered into urgent labor contracts for up to two months, prevent reduction to at least three calendar days, and workers employed in seasonal work - for seven calendar days (Art. 292, 296 of the Labor Code of the Russian Federation).
In the employment service, to inform about the upcoming dismissal, the company should also no later than two months. And if we are talking about mass dismissal - for three months. Such an order is provided for in paragraph 2 of Article 25 of the Law of April 19, 1991.
No. 1032-1 "On employment of the population in the Russian Federation" and Article 82 of the Labor Code of the Russian Federation.
In this case, you need to fill out:
- "Information on the mass release of employees";
- "Information about the released employees."
Forms of forms are given in Annexes No. 1 and No. 2 to the Regulation on the organization of work to facilitate employment in the conditions of mass release, approved by the Decree of the Council of Ministers - the Government of the Russian Federation of February 5, 1993 No. 99.

Offer available vacancies

It is important to remember that the dismissal due to the reduction of the state is considered legal only if the company has no opportunity to provide people with another work available in the organization. And the vacancy is taken into account both the relevant qualifications of the reduced employee and the downstream (or lower-payable). The main thing is that the employee gives his written consent to the translation (if he can fulfill another job, taking into account the state of his health).
At the same time, the employer is obliged to offer the vacancies that have responsible for the relevant requirements of the vacancy in this area. Offering work in other areas follows only in cases where such an opportunity is provided for by the collective or employment contract (Art. 81 of the Labor Code of the Russian Federation).
The supply form of the available vacancies is also not officially approved, so it can be made in arbitrary form.

Criteria of mass dismissal

They are determined in industry or territorial agreements. There is no such document for the construction of such a document. Therefore, it is necessary to be guided by the general standards established in paragraphs 1, 2 of the provisions approved by Resolution No. 99. The main criteria for mass release are indicators of the number of dismissed employees in connection with the elimination of organizations or a reduction in the number or staff of employees for a certain calendar period. These include:
a) the elimination of the organization of any organizational and legal form with the number of 15 and more people;
b) Reducing the number or staff of employees of the organization in quantity:
- 50 or more people within 30 calendar days;
- 200 or more people within 60 calendar days;
- 500 or more people for 90 calendar days;
c) dismissal of employees in quantity
1 percent of the total number of employees in connection with the liquidation of the organization or the reduction in the number or staff within 30 calendar days in the regions with the total number of employed less than 5,000 people.
Depending on the territorial and sectoral features of the development of the economy and unemployment in the region, other enhancing the social security of the employees of the organizations of the criteria for assessing the mass release, determined by the state authorities of the republics as part of the Russian Federation, edges, regions, autonomous formations, cities and districts.
Coordination with the trade union

Employer, according to part of the first article 82 of the Labor Code of the Russian Federation, when making an appropriate decision is obliged
in writing, report this to the elected body of the primary trade union organization no later than two (three - with a massive reduction) of the month before the start of termination with employees of employment contracts.
It should take into account the position of the Constitutional Court of the Russian Federation, which is expressed in the definition of January 15, 2008.
No. 201-o-p. The court stressed that the appointment of this standard is to provide the trade union organization the time required to implement its opportunities to protect the socio-labor rights and interests of employees when terminated with them of employment contracts, but not a limitation of the empowerment for independent adoption of the necessary personnel decisions in order to Implementing effective economic activity. This conclusion is based on the constitutional requirements of equitable harmonization of the rights and interests of employees with the rights and interests of employers as partnerships as partnerships.
In other words, the consent of the electoral body is not required to reduce, it is enough to notify him in writing.
When reducing employees who are members of the trade union, the motivated opinion of the election body of the primary trade union organization should be taken into account in accordance with Article 373 of the Labor Code of the Russian Federation.

Dismissal

After two months after the notice of the reduction notice, the employer has the right to publish an order to dismiss the employee. After the employee becomes familiar with the order (on receipt), an entry record is made to his labor book.
The order is issued in form No. T-8 approved by the Resolution of the State Statistics Committee of Russia of January 5, 2004 No. 1.
How to issue a labor book with a reduction is clarified in section 5 of the instructions approved by the Resolution of the Ministry of Internal Affairs of Russia of October 10, 2003 No. 69. So, when terminating the employment contract on the initiative of the employer, including when reducing the state, an entry is made to the employment record dismissal (termination of the employment contract) with reference to the corresponding clause of Article 81 of the Labor Code of the Russian Federation. For example: "Fired to reduce the staff of employees of the organization, paragraph 2 of Article 81 of the Labor Code of the Russian Federation".
The formulation of the record in the book must comply with the formulation of the reference point (article) of the Labor Code of the Russian Federation. Abbreviations are not allowed in the text or in references: it is impossible to write "per." Instead of "translated", "p." Instead of "Item", "TK RF" instead of the "Labor Code of the Russian Federation", "Ave." Instead of "Order", etc. (paragraph 1.1 of the instructions). This is required to eliminate possible discrepancies.

Payments in abbreviation

With dismissal workers, it is necessary to pay on the last day of their work. If the man did not work on the day of dismissal, then the money was paid the day after he turned to them.
Such an order is established in Article 140 of the Labor Code of the Russian Federation.

What payments are made employee

When dismissal due to the reduction in the number or staff, the employee relies pay:
- Output allowance in the amount of average monthly earnings;
- Middle earnings for the period of employment, but not over two months from the date of dismissal (with a testing of the day off).
This is stated in Article 178 of the Labor Code of the Russian Federation.
In exceptional cases, the average monthly earnings remains behind the abbreviated worker and within the third month from the date of dismissal.
But for this it is necessary to solve the employment service authority (it can be issued if a person appealed to a two-week period after dismissal and was not employed).
For builders working in organizations located in the regions of the Far North and equivalent locations, Article 318 of the Labor Code of the Russian Federation provides additional benefits.
Thus, the maximum period of preservation of the average monthly earnings for the employment period is three months from the date of dismissal.
And in exceptional cases, by decision of the employment body, the average monthly earnings can be maintained during the fourth, fifth and six months (if a person appealed during the month and was not employed).
In addition, as noted above, if the employment contract is terminated early (before the expiration of a two-month period from the date of notification, according to the written agreement of the employee), additional compensation is required. The amount of compensation is equal to the average earnings, calculated in proportion to the time remaining before the expiration of the notification of the dismissal (Article 180 of the Labor Code of the Russian Federation).
And of course, the employee's dismissal needs to pay compensation for unused vacation (including additional).
Please note: when dismissing foreign builders at the end of the action of quotas (on the basis of paragraph 12 of Art. 83 of the Labor Code of the Russian Federation), the existence is not paid. Article 178 of the Labor Code of the Russian Federation, its payment in this case is not provided. And the reduction is not considered to be reduced.

What rights do workers have dismissed as a result of a state reduction, and that the benefits have this kind of dismissal.

What is the reduction of the state?

Staff reduction is a decrease in the number of employees on the initiative of the management of the enterprise. Usually, the employer reduces staff when it is not able to pay them a salary. This is completely and next happens during the financial crisis, but also in calm times you can get under reduction.

Good to know!

The employer must warn employees about the upcoming reduction at least two months before dismissal, and in writing and under the painting.

Important!

The employer has no right to cut:

Pregnant women
women having children under the age of 3
Lonely mothers raising a child under 14 years old or a disabled child under 18

If the reduction is illegal

The procedure for dismissal to reduce difficult, and employers often make mistakes: dismissed those who cannot, incorrectly draw up documents, violate the warning time ... In any of these cases you can go to court and recover at work. But, if you are under pressure from the boss, they will not have to count on restoration.

Reduction is profitable!

Dismissal to reduce is considered one of the most profitable - for the employee, but not for the employer. The law obliges him to compensate the damage to the abbreviated worker, or rather, to pay compensation. And in order not to pay compensation, employers, reducing staff, often asking subordinates to write a statement on their own request.
If you understand that in fact you are preparing to reduce, in your interests prevent the staging with the "own desire", but to ensure compliance with the entire procedure for dismissal to reduce the state. In this case, the employer will be obliged to do the following.

STEP 1

Suggest you another free position at your enterprise. If your qualification is higher than required, the employer is obliged to make such a proposal, but if the lower is alas.

Step 2.

If you refuse the proposed post, the employer is obliged to compensate you material damage from loss of work.

First, the law guarantees you at least one month of a comfortable existence at the expense of the previous employer. After the dismissal, you must pay a day off in the amount of your middle monthly earnings.

Secondly, if during the month you did not get a job, you must pay an average salary for the second month.

Thirdly, in a certain case you can get a salary for the third month after dismissal. To do this, you must within 14 days after dismissal to regain the labor exchange for employment. If in three months from the date of the dismissal of the exchange will not pick up for you another work corresponding to your qualifications, the Administration of the Exchange will oblige your former employer to pay you another salary. However, it is important to understand: the third salary will be paid to you only if the exchange really does not have a suitable job for you. If you will simply give up vacancies suitable for you, you will not only receive the third salary, but you can fly off from the work exchange.

By the way

If, after cutting, you will set on the labor exchange in time, for three months after dismissal, continuous work experience will be saved.

Rules for calculation

The day of dismissal is considered the last day of work. It is on this day that the employee must be issued money and documents, in particular the workbook. If the employer breaks deadlines, you have the right to submit it to the court. Then, in addition to the calculation, you will receive monetary compensation for each day of delay. However, usually one hint of a complaint about the labor inspection is enough for the employer to pay with an employee as it should be.

Reduction "spoil" labor

It is the opinion that employers do not like to hide people who were fired to reduce. Say if you were fired to reduce, it means you were the least valuable employee.

In fact, it is nothing more than a fairy tale invented by employers who do not want to pay the day off benefits to people dismissed to reduce. After all, these are considerable spending for the organization. As for the new employer, then for him will be much more important than your work experience and the desire to work, rather than the reason for dismissal.

Work in crisis

In order not to be among the dismissed, try to adhere to some rules:

Demonstrate hard work

To demonstrate to the management of your hard work, you will have to work without downtrend. We'll have to stay at work if you ask for something to finish or do not work. If you want to save work, you will have to agree on any work. There is hope that from two employees will choose you.

Do not be late

If before you could afford to be late for work or linger at lunch, now it's not worth doing this. All this is a reason to find fault to you and dismiss.

Remind of your significance

Think what exactly you did for the company: they signed an important contract, more than once exceeded the plan ... and unobtrusively mention this with any possibility in conversations with colleagues and with management. No need to modest, now it is for nothing. The bosses are not obliged to remember the achievements of all employees, and will not be superfluous to remind him how valuable is for the company.

Show composure

Having learned that dismissal was commissioned in the firm, you should not pay too much attention to this fact and all the more coming to the authorities to prescribe on pity, or shook with colleagues in the sidelines, it is better to maximize the time of work - the bosses will appreciate it.

Get ready for compromises

Quility, inflexibility, conflict - these qualities will not play your hand during the crisis at work. The supervisor is now hard not less than subordinate. And no one wants to spend the nerves on the stalling worker. Try to curb your own character and make it comfortably to work with you. At work, be calm and friendly. To all your view, show what you know your business and this is the main thing for you.

Decision is not a very pleasant moment. This can occur at your own request. There is often dismissal to reduce states. Payment of benefits in this case is guaranteed by law. The work procedure from work for this reason has its own characteristics.

Concept

State reduction - a procedure enshrined by law. Dismissal in this case should occur under the TK RF. Failure to exercise its conditions with the restoration of the employee for the post.

Additionally, the employer pay for the illegal dismissal salary for the lack of absence. Often disputes over work are solved in court. Moreover, the side of the former workers is often taken.

Norms of law

Questions related to reduction are regulated by the Labor Code of the Russian Federation. Based aspects are present in:

Art. 178 and 179 - Requirements and order.
Art. 261 - warranty.
Article 266 - Regulations on the reduction of seasonal workers.

Rights

The rights of the employee in the reduction of the state are protected by law. Some employees are provided guarantees that protect against dismissal. To reduce them can only have the liquidation of the institution. There are some categories of people who are provided by the preferential right to leave for positions. Therefore, if it is liquidated, the employer must offer a person another job.

Advantages use:

Workers who, because of work, received diseases or injury.
Persons whose dependent is 2 or more disabled people.
Employees who are considered the only breadwinners in the family.
Disabled hostilities.
Advanced workers.

For example, a person is considered the only one in the family who brings income. In the event of the disposition of post, the employer is obliged to offer him another vacancy.

Features of abbreviation

Dismissal may be carried out due to the reduction of the state or disposal. These procedures have their own characteristics. By law, management is not obliged to provide arguments that caused such events. But it should still provide reasons for excess personnel.

The staff is the total number of positions of the company. Its reduction is often independent of the manual. But still the norms of the Labor Code of the Russian Federation must be observed. In some cases, the reduction does not imply dismissal, but only the redistribution of employees. It may concern and a specific position. Then a new schedule is compiled, where there are no old posts.

Dismissal can touch all employees. This also applies to pensioners. Payment of benefits for guaranteed by law. For example, a person is registered with the employment service to receive income, and in the meantime is looking for a new job. It can only dismiss a minor can only with the complete elimination of the institution, as well as in the resolution of the State Inspectorate. In other cases, depriving the work of people under 18 illegally.

Description of the procedure

There is a procedure for dismissal to reduce the state. When it is fulfilled there is no reason to go to court due to illegal actions. The procedure is as follows:

Created an order. It should contain positions of positions that need to be reduced. Also designated persons who are responsible for this procedure. The form of the document is arbitrary.
A new schedule based on Form No.-3 is issued. It indicates the number of regular units, positions, rates and salaries.
An order is published on the basis of the introduction of a staff schedule. The document informs workers about the beginning of its action.
Candidates are considered. A commission analyzing the availability of people in humans is organized. According to the results, the protocol is drawn up, which indicates the conclusions about the impossibility of dismissing employees.
The alert of employees about the upcoming event is published. All the persons specified in it must familiarize themselves and sign.
Those employees who decided to terminate the contract ahead of schedule, it is necessary to permit on early termination. It is sent to the employer in writing.
Then the alert is sent to the Employment Center and the trade union.
If the employer has vacant positions, reduced workers can occupy them.
After the decision of all questions, the order of the form No. P-8 on termination of contracts is published.
Records are performed in employment records, which indicates paragraph 2 of Part 1
Workers receive payments. Incore may also be provided for 2 years.

This is the procedure for dismissal to reduce the state. If the worker standing on military registration was fired, the leadership is given 2 weeks to alerts the military registration and enlistment office. When a person reducing, from the income of which the means on the executive list was paid, then this should be notified by the bailiff.

Notification

Only after the notification should be dismissal to reduce the state. Payment of benefits will be a legitimate measure of social protection of citizens. Notification must be published 2 months before the new schedule. It includes a list of all fired. When reducing a seasonal employee, alert should occur in 7 days. If an employee is fired, in which the contract is valid 2 months, then the notification occurs in 3 days.

Without notice, the procedure will be invalid. With dismissal, a list of documents should be issued. At the same time, the employer needs to follow some terms. For example, from the date of publication of the order until the procedure itself must pass at least 2 months. Only in this case the procedure will be legal.

Payments

If there was dismissal to reduce the states, the payment of the benefit is ensured. Provided:

Salary for the last month and compensation for the unsighted vacation. It is necessary to pay no later than the last day of work.
Output benefit. If there was dismissal to reduce the states, the payment of the benefit of this type is obligatory. It is listed within 3 months after a reduction, if a person has not got a new job. For the first time he is paid by an advance, given the calculation when dismissal.
Privileges. Provided when registering at the Center for Employment, if for 3 months there was no new work. Only then this organization provides payments in reducing state. Examples and features of these procedures make it possible to understand what to count on. For example, if a person is considered unemployed for 4 months, the employment center provides a guide, so a person can search for a suitable position.

Dimensions of payout

If an employee's reduction procedure occurred, payments it will receive on the basis of the norms of the law. At the same time, the size corresponds to the amount of average monthly income.

The benefits are accrued as follows:

From 4 to 7 months - 75%.
From 4 months after the designated time - 60%.
Then - 45%.

Everyone should be made income, no matter where dismissal to reduce states. Examples of compensation will allow determine how much should count. The average income of the employee is taken into account. If it is 20,000 rubles, then in the unemployment it will be 15,000 rubles from 4 to 7 months. Then the income will decline. During this time, with the help of the employment center, you can seek a suitable vacancy.

Who is forbidden to dismiss?

There are several categories of persons with warranty. They will not dismiss them, no exception to them should offer other vacancies. New work should be similar to the old payment and qualifications.

Can not be fired:

Pregnant women.
Mothers of children with disabilities.
Mothers with children under 3 years old.
Single mothers with children under 14 years old.
Single fathers with children under 14 years old.
Juvenile.
Employees on vacation.
Temporarily disabled.

Warranty

The law provides guarantees for persons who fell under the reduction. They have a period during which you can find a new job. Employees have the right to receive another position if it is. Possible translation to another branch of the company. The guarantee refers to the receipt of benefits.

If there are complaints about the procedure for cutting personnel within a month, you can contact the court to appeal the decision. It should be borne in mind that this body does not always restore people in office. For example, it will not be possible to do if the employee does not fit under the preferential category, and the procedure is legally performed. The court can change the formulation of recording in the employment record, as well as to ensure the transfer of payments for the forced rushing.

And the employer can provide evidence of the legality of dismissal with an employee:

The old and new schedule: in one document will indicate a position, and in the second - no.
Candidate personal affairs: one can have advantages, and the other is not.
Written refusal of a person from receiving a new position.

Thus, dismissal to reduce has its own characteristics. Both parties need to take into account the norms of the law, since they precisely regulate such relationships.

Reducing the number of employees is one of the effective ways to reduce costs or reduce the pace of production, if the organization has ceased to bring sufficient profits. In the article we will tell you how to avoid mistakes while reducing the staff of employees.

If the employer decided to reduce the number of employees, he needs to take into account all the nuances of this complex process. Allowed errors are not reduced, but, on the contrary, significantly increase staff costs.

For example, the Court can restore the employee at work and oblige an employer to pay him average earnings for all time forced absenteeism (Art. 394 of the Labor Code of the Russian Federation, further - the Labor Code of the Russian Federation), and also compensate the moral damage (Art. 237 of the Labor Code of the Russian Federation). At the same time, the employer is obliged to pay all court expenses (Art. 88 of the Civil Procedure Code of the Russian Federation).

In addition, if the employee comes to the protection of his rights to labor inspection, with improper declaration, the employer threatens administrative responsibility under Art. 5.27 Code of Administrative Offenses of the Russian Federation.

Consider typical errors that make employers, drawing up staff reduction.

1. Incorrect the reduction notification

Warning workers about reducing, it is necessary to take into account all the requirements of the law, as well as the current practice to reduce the risk of disputes. We recommend issuing a notice of reducing the number of employees. The more document will be drawn up, the less questions, misunderstandings and irritation will cause employees (Example 1).

2. Employees do not notify the reduction or notify with violations

An important nuance - absolutely all reduced workers should be prevented about the reduction and on time.

According to the part of the second Art. 180 TK RF, the employer must in writing to warn workers under the painting on their reduction at least two months before dismissal.

If the employee refuses to familiarize himself with the notification or sign about familiarizing it, then the employer will have to read the notice to the employee aloud and draw up an act in which two or three employees who are present at the familiarization (example 2) should be written.

However, in the terms of the employee's notification there are exceptions.

Notification in a few days. For example, if an urgent employment contract has been concluded with a period of up to two months, then it needs to be prevented in writing at least three calendar days (part of the second Art. 292 of the Labor Code of the Russian Federation). An employee who is busy in seasonal work, the reduction should be written in writing at least seven calendar days (part of the second Art. 296 of the Labor Code of the Russian Federation).

Certificate for illness and vacation. If an employee needs to be notified of the reduction, and it is on vacation or on a hospital, it is better to wait for it to go to work and give a notice personally. But if this remote employee either leadership requires to notify the employee despite the vacation?

In this case, you need to send a reduction notice for all the well-known addresses of the employee to a valuable letter with the description of investment and a notification of the presentation (Example 3). The date of the notification is the date of receipt by an employee of a valuable letter.

If the employee is available on the phone, it is worth calling him and tell you about the need to get a notice. Moreover, it is necessary to do it on a speakerphone and with witnesses. The conversation must be fixed by the act (Example 4). Such an act speaks about the conscientiousness of the employer and confirms that he has done everything possible to notify the employee about the reduction.

3. Do not offer all suitable vacancies

If organizations have vacancies, they should be offered to the reduced worker (if they approach him on qualifications and health status) as they appear within two months, the warning period is valid for the reduction in connection with the reduction (part of the third Art. 81 of the Labor Code of the Russian Federation) .

Often, courts are restored by workers because they were offered not all vacancies. The courts are carefully checked, whether positions in the staffing and in vacancies are coincided (see, for example, the appeal definition of the Krasnoyarsk Regional Court of 02.02.2015 in case No. 33-949 / 2015, A-9).

It is necessary to offer not only posts, relevant employee qualifications, but also downstream.

Question in the topic

Do I need to offer a vacant superior position?

If you know exactly that the qualifications are insufficient, it is not necessary to offer this vacancy (see the appellate definition of the Moscow City Court of 30.03.2015 in case No. 33-10408 / 2015).

But if it is not for sure whether an employee is to occupy a higher position (perhaps he passed additional training or he has an experience that is not reflected in the employment record), the risk of disputes increases. For this, we offer in the reduction notice to report on unknown employer on qualification documents (see Example 1).

Thus, it is necessary to ensure that the regular schedule does not remain extra vacancies (just in case). All jobs for which the search is not yet available should be excluded.

Offering vacancies Employer is obliged only in this area, if the employment or collective agreement is not provided for otherwise (see the appellate definition of the Moscow City Court dated December 24, 2012 in case No. 11-25754).

It should be noted that the position on which the woman worked on maternity leave was worked out in the opinion of most vessels is not considered vacant (see, for example, the definition of the Moscow City Court of 29.05.2014 No. 4G / 8-3516). This post is free to temporarily-Woman can come back, and we do not know when - in three months or three years later.

4. Reduce "protected" employees

Despite the fact that the organizational structure and staff schedule - the right of the employer, the law protects some categories of workers who need state support. The "protected" employees include:

Pregnant woman (part of the first Art. 261 of the Labor Code of the Russian Federation);

A woman who has a child under the age of three (part of the fourth century 261 of the Labor Code of the Russian Federation);

A lone mother, raising a child up to 14 years old or a disabled child under 18 (or a person raising such a child without a mother) (part of the fourth cent. 261 of the Labor Code of the Russian Federation). According to paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 28, 2014 No. 1 Lone Mother is considered a woman who brings up their children (relatives or adopted) and deals with their development independently, without a father. In particular, if the father:

He died, recognized as missing absent (it is necessary to request a certificate of death with an employee, a corresponding court decision);

Deprived of parental rights, limited in parental rights (relevant court decision);

It is recognized as incapable (limitedly capable) or for health, it cannot personally educate and maintain a child (a court decision or certificate, for example, disability);

Offers a sentence in institutions that are punished in the form of imprisonment (relevant certificate);

Evades the education of children or from protecting their rights and interests. It is about divorced women who appealed for the recovery of alimony to court and the bailiffs service, but, despite this, the alimony failed to recover (certificate from the bailiff service that the alimony failed to recover);

Other situations (for example, when paternity of the child is not established in the birth certificate - duct);

Parent, if he is the only baby's breadwinner up to three years or a disabled child under 18 years old in a family of three and more children under 14 years old and at the same time another parent (a representative of the child) is not in labor relations (part of the fourth cent. 261 of the Labor Code of the Russian Federation) .

To reduce the risks of court proceedings, such workers are better not to reduce.

Also note that workers under the age of 18 decorate in connection with the reduction in connection with the consent of the labor inspection and the Commission on Minors (Art. 269 of the Labor Code of the Russian Federation).

In addition, if the employee is a member of the trade union, it can be dismissed only in coordination with the primary trade union organization (part of the second Art. 82, 373 of the Labor Code of the Russian Federation).

Finally, do not dismiss the employee during its temporary disability and during the stay on vacation (part of the sixth of Art. 81 of the Labor Code of the Russian Federation, sub. "A" of paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

5. Do not take into account the preferential right to stay at work

With such a problem, the reduction can be encountered if there are several positions in the staffing schedule. For example, three sales managers work in the department, and only one needs to shorten. In this case, part of the first Art. 179 of the Labor Code of the Russian Federation requires the employer to reduce employees at work with higher labor productivity and qualifications.

Qualifications can be checked according to the document on education and the employment record, but the productivity assessment will require certain efforts from the employer.

How to estimate labor productivity? Performance of working personnel to evaluate easy - it is enough to find out whether employees of labor standards (time and development) comply. It is much more complicated with an assessment of the productivity of intellectual labor workers. Here are some tips:

1. If an annual staff assessment is held in the organization, we recommend attaching its results. The results of the certification, if it was carried out, will also be useful.

2. If the Organizations establishes indicators of bonuses, the labor productivity of workers can be estimated in size and frequency of the awards accrued. You can also take into account the regular execution of additional work (for example, part-time or by a special order). We recommend to evaluate both the work discipline of the employee. If the discipline is low or there are comments, reprimanded, then such an employee has no preferential law.

How to document the productivity assessment.First of all, it is necessary to publish an order for the establishment of the Commission to determine the preemptive right to leaving at work. The order must be the following provisions:

The results of the assessment must be specified in the minutes of the meeting of the Special Commission. In court, the Protocol is proof that the employer has taken into account the preferential rights of workers. The protocol should be attached to the tables with evaluation by employees of the rules of production or service, plans, orders, etc. (See Table).

If the labor productivity and the qualifications of workers in the same positions are approximately equal to, it should be followed and provide the preemptive right to the following categories (part of the second Art. 179 of the Labor Code of the Russian Federation):

Family with two or more dependents;

Persons whose family has no working family members;

Employees who during work in the organization received labor injury or occupational disease;

Disabled wives and fighting;

Employees who increase the qualifications without separation from work in the direction of the employer;

Such workers should request confirmation documents. For example, a worker who has two or more children must provide a birth certificate, as well as a passport with registration confirming the accommodation with children; Disabled hostilities - certificate.

6. Do not notify the employment service and trade union

In accordance with paragraph 2 of Art. 25 of the Law of the Russian Federation of 04/19/1991 No. 1032 - 1 "On employment of the population in the Russian Federation" (as amended by 07/29/2017, hereinafter - Law No. 1032-1) on the reduction of the number or staff, even if only one position is reduced or one Worker, you need to notify the employment service no later than two months. If the reduction is massive - three months before the start of the reduction. In each region, the form of notification is its own. It should be clarified on the sites of the employment services of the regions. Let us give an example of notification in Moscow (Example 5).

The criterion of mass cause is determined by industry, territorial or regional agreements between trade unions and employers (part of the first Art. 82 of the Labor Code of the Russian Federation).

If these agreements are not applicable to a specific employer, it is necessary to be guided by paragraph 1 of the provisions on the organization of work to facilitate employment in the conditions of mass release (approved by the Government Decree of 05.02.1993 No. 99).

According to part of the first Art. 82 of the Labor Code of the Russian Federation, if the organization has a trade union, it needs to be notified in the same time (Example 6).

7. Personnel documents are issued with errors

Errors in the design of personnel documents can lead to fines and even to the recovery of the employee. To avoid them, you need to carefully issue his dismissal on the last day of work (paragraph of the second part of the first Art. 84.1 of the Labor Code of the Russian Federation, paragraph 35 of the Decree of the Government of the Russian Federation of 16.04.2003 No. 225).

Below we list the actions of the employer on the last working day of the dismissed employee.

With the order of the employee, it is necessary to familiarize themselves under the painting. If you refuse to get acquainted, you must compile the appropriate act, which should be signed by two or three employees (Example 8).

We draw a note-calculation. Possessed-calculation is mandatory for publication with a document and sent to the accounting department on the day of the employee's dismissal. It is issued either by unified form No. T-61 or in the form approved in the organization. In it, the framework reflects the number of days unused or used by an extension of the leave (example 9).
We introduce an entry in your personal card. The dismissal of the employee needs to be recorded in the XI Personal Card for Form No. T-2, with which the employee needs to be familiar with Painted (Example 10).

We issue a labor book. On the day of dismissal, the employee needs to issue a labor book with a record of dismissal (Art. 84.1 of the Labor Code of the Russian Federation) to the painting in the book of accounting books (Example 11).

If the employee refuses to get a labor book, it is necessary to draw up an act signed by two-three employees (example 12).

If the worker behind the labor book did not appear, it is necessary until the end of the working day to send him a notice of the need to pick up the labor book (example 13) or give written consent in an arbitrary form to send it by mail (part of the sixth of Art. 84.1 of the Labor Code of the Russian Federation). Direct the notice is better in all the well-known addresses of the employee to increase the likelihood of its receipt.

We issue certificates. When dismissing the employer is also obliged to issue an employee:

A certificate of the amount of his earnings, on which insurance premiums were charged to the social insurance fund (part 2 of Art. 4.1 of the Federal Law of December 29, 2006 No. 255-FZ "On compulsory social insurance in case of temporary disability and due to motherhood");

Certificate with information about the accrued and paid insurance contributions to the Pension Fund of the Russian Federation (Art. 11 of the Federal Law of 01.04.1996 No. 27-FZ "On Individual (Personalized) accounting in the system of compulsory pension insurance").

8. Leave the position in the staff schedule

The position of the disadvantaged employee should be excluded from the staffing schedule the day after his dismissal. If the employee is dismissed on September 30, then from October 1, this post should not be in the staff schedule.

At the same time, it is necessary to refrain from the introduction of the same or similar position for several months (see the appellate definition of the Novosibirsk Regional Court of 05.05.2015 in case No. 33-3752 / 2015).

9. Incorrect employee

On the day of dismissal, the employer must pay employees a day off manual in the amount of average monthly earnings, wages and compensation for unused vacation.

The amount of wages is determined in the amount that the employee is assumed for the time actually spent in this month. Compensation for unused vacation must be calculated in accordance with Art. 121 TK RF.

If the last day of work with the employee did not calculate, the employer should pay the employee interest under Art. 236 of the Labor Code of the Russian Federation in the amount of not lower than 1/150 in effect at this time of the key rate of the Central Bank of the Russian Federation for each day of the delay, regardless of the guilt of the employer. The employer is obliged to pay average earnings for the second and third month if the employee did not find work.

To obtain benefits for the second month, the employee will need to provide the employer with an identity card, the original workbook without records of work after the reduction date.

If the worker did not get a job and wants to receive a day off and for the third month, he needs to observe the following conditions:

In a two-week, after dismissal, regain in the employment body as unemployed;

To be an unemployed data from employment for the third month after dismissal;

To provide the employer to the decision of the employment body of the population about the employee of the average monthly earnings for the third month.

If the employment service makes such a decision, the allowance will have to pay for the third month.

Note: If the organization or its branches are located in the areas of the Far North or region equivalent to them, then according to Art. 318 Tk of the Russian Federation Middle Earnings of abbreviated workers persists up to three months. In exceptional cases - up to six months (by decision of the employment service).

In conclusion, we give a step-by-step algorithm for reducing the number of employees (block diagram).