Law on layoffs. How long before employees need to be warned about layoffs due to redundancy? How a redundancy termination ends: vacation pay, severance pay

The decline in production in many industries is a normal consequence of the global economic crisis. As a result, the owners of factories and enterprises are forced to significantly reduce the number of employees. The procedure for dismissal of employees must be carried out in accordance with all the rules. The employer does everything so that after that the staff can again get a job in the appropriate position.

Step one

Reduction of employees must be documented. The employer issues an order that describes the total number of layoffs. A new schedule of specialists is approved, according to which the organization or enterprise will work in the future. It indicates the total number of employees after the reduction procedure, as well as the date the new schedule is put into effect. The number of employees of all categories or individual specialties may be reduced per enterprise. can only be carried out with the restructuring of the organization. In most cases, only 15-20% of employees from the total staff are fired.

The employer is obliged to inform the employment service in advance about the upcoming reduction of employees. If there is a mass dismissal of personnel, it is worth sending an advising letter no later than three months before the procedure. It is necessary to notify the employment service 90 calendar days in advance if it is planned to dismiss more than 50 employees in one month or more than 200 workers in three months. Mass reduction is the liquidation of an enterprise or organization. Depending on the territorial and economic characteristics of a particular region, other factors of multiple layoffs may also be established. Any deviations from generally accepted norms are approved by local governments.

step two

After the decision to reduce the staff is made finally and irrevocably, it is necessary to choose the specialists who will be subject to dismissal. In this case, it is imperative to comply with the rule of preference for leaving the workplace. Some employees cannot be fired for a number of reasons. According to the Labor Code of the Russian Federation, the reduction cannot apply to women on maternity leave, employees with children under three years of age, single mothers who take care of a minor child, as well as other persons who take care of a disabled person or a minor.

C describes who can be given the priority right to remain in the workplace. Layoffs are the last resort for employees with extensive experience and high qualifications. High performance must be documented. The employer cannot make a decision based on his own preferences. The qualifications of a specialist may be evidenced by such factors as the presence of a higher vocational education, a large number of past certifications. Persons with or rank are the last to be fired.

If all employees of the enterprise have equal conditions, preference is given to employees who have more than one minor child. Employees who have previously been maimed or injured at the enterprise cannot be made redundant. Also, participants in the Second World War or other hostilities are not fired.

Preference may also be granted to persons who are the authors of any inventions. In state organizations and military units, preference is given to the spouses of servicemen. Layoffs are the last thing that concerns them. Citizens dismissed from military service and those who have entered a job cannot be deprived of their first position. They are also given a preferential right to remain in the workplace.

A specific organization may also describe other categories of specialists that may have an advantage in dismissal. The main ones are described in the Labor Code of the Russian Federation. The reduction must be carried out in accordance with all rules and regulations.

Step Three

The employer must notify each employee who is subject to redundancy in writing. All the nuances are described in Part 2. Everyone receives a written dismissal for the reduction of an employee. Also, the head can report personally against receipt. This must be done no later than 2 months before the date of the upcoming dismissal. This allows the employee to find another decent job.

Often there are cases when employees refuse to put their signature under the order to reduce. In this case, the procedure is a little more complicated. The employer has to send a notification letter to the home address. In parallel, a special act is drawn up on the refusal of the employee to familiarize himself with the dismissal order. If the employee later goes to court with a demand to sort out the grounds for dismissal, the employer will be able to submit all the necessary documents without any problems. The employee reduction procedure will be followed correctly.

Step Four

According to the Labor Code of the Russian Federation, when an employee is laid off, the employer must offer him in writing a transfer to another job. Employment measures will help people who are made redundant to re-employ an appropriate position in another organization. Such measures are only supportive. The employee has the right to refuse the offered vacancy and independently find another one. In some cases, an internal transfer is possible. That is, at one enterprise, a specialist is reduced from one position and goes to another. At the same time, a new schedule of employees must be drawn up, as well as job descriptions approved. They describe the new workplace, as well as the nuances of remuneration.

First of all, a specialist can be offered a position that corresponds to his qualifications. If there are none, a vacancy for a lower position may be offered. It should be borne in mind that wages in this case will be slightly lower. Jobs may be offered that correspond to the qualifications of a specialist, as well as his state of health.

In the event that an employee agrees to the proposed vacancy, in as soon as possible translation is made. Resignation is documented. A special act is drawn up, which must be signed by the employee who has fallen under the reduction. If the employer cannot offer a position that meets the qualifications of the employee, an act is also drawn up on the impossibility of transferring to another position.

It should be borne in mind that the reduction of employees is possible only when it is impossible to transfer them to a similar position in another department. Failure to comply with this requirement is a serious violation of the labor code and entails the responsibility of the employer. To protect yourself from litigation, the head of an organization or enterprise should receive a written refusal from an employee undergoing a reduction to be transferred to another position.

Step five

The procedure for reducing an employee who is a member of a trade union is somewhat more complicated. In accordance with the Labor Code of the Russian Federation, the employer must send a copy of the document to the trade union organization, which is the basis for the upcoming reduction. Additionally, a draft dismissal order can be sent. This procedure is performed one month after the employee's notice of dismissal for a partial reduction and two months for a mass reduction. The trade union body may consider this issue for no more than seven working days. Followed by a written response with recommendations.

Often there are cases when the union does not agree with the decision of the employer to reduce a particular employee. In this case, within three days after the written response, the parties must meet and discuss the details. The results of such a meeting are documented in writing, and all the nuances of the negotiations are recorded in the minutes. Within ten days after the negotiations, the employer already makes the final decision. The procedure for reducing an employee in the future takes place according to all the rules. The employer's decision can be appealed to the state labor inspectorate. Upon receipt of a complaint, the issue is considered within 10 working days. If the reduction procedure was carried out illegally, the employee may be reinstated in his position.

If an employment contract is terminated with an employee who has not yet reached the age of 18, in addition to the trade union organization, the employer is also obliged to notify the inspectorate for the rights of minors. Only after obtaining consent from this organization, the employee can be reduced.

Step Six

With the written consent of the employee, the employer has the right ahead of time terminate his employment contract. At the same time, an additional allowance is paid in case of reduction, which corresponds to the amount wages for the remaining business days. Compensation is calculated in accordance with the job description of a particular employee, as well as the number of working hours until the date of dismissal. The early dismissal procedure is carried out in accordance with the 3rd part of Article 180 of the Labor Code of the Russian Federation.

Employer creates a cease and desist order employment contract. The rights of the employee must be observed during the reduction. It is not allowed to dismiss employees during the period of their temporary incapacity for work or stay on paid leave. The only exception is the complete liquidation of the enterprise. In this case, the mass reduction occurs without notifying the trade union organizations.

Each employee must be familiarized with the reduction order no later than three working days from the date of its issuance. The employee puts his signature in the corresponding protocol. By this he confirms that he was informed of the dismissal. The order to reduce must be registered in the journal of orders.

step seven

The employer is obliged to pay employees a redundancy allowance. The calculation is made in accordance with the Additional compensation is paid for all unused vacation days. If an employment contract is terminated due to the liquidation of an enterprise or organization, the employee is entitled to a payment equal to the average monthly salary. In addition, the employee retains the average monthly earnings for the period of employment, subject to applying for help to the employment service. At the same time, payments can go no more than two months from the moment of official dismissal.

In the work book of a specialist, an entry about the termination of the employment contract necessarily appears. The reason why the person was dismissed from the organization is indicated. Employees who have been made redundant have far more benefits. They manage to find a well-paid job much faster than those who quit their previous jobs. own will. All entries in work book are entered in accordance with the rules for maintaining and storing corporate documentation No. 255. The calculation of a specialist, as well as the issuance of a work book to him, are carried out directly on the day of dismissal. If at this time the employee is not on site, the calculation is made on demand. As soon as a person comes to the organization from which he was dismissed for reduction, he can submit a request for a settlement in writing. Retrenchment benefits are paid no later than the next business day.

Downsizing Report

When reducing an employee, the employer is obliged to notify the employment service that the dismissal procedure has been carried out. This must be done within 10 days after the termination of the employment contract. For late submission of a report on dismissals, the head of an enterprise or organization faces penalties. The state will have to pay serious compensation equal to the annual salary of a laid-off employee, information about which was not received by the employment service. Penalties can be imposed both on private entrepreneurs ( individuals), and on organizations (legal entities).

Often, the employer enters an entry in the employee's work book incorrectly. This is done intentionally so as not to draw up unnecessary documentation. The fact is that the dismissal "by agreement of the parties" does not require additional notification of the employment service. At the same time, the dismissed employee receives exactly the same rights as with the reduction.

The employer is obliged not only to submit the reduction report in a timely manner, but also to fill it out correctly. The document must indicate the passport data of such an employee, the name of his position, the profession code in accordance with the labor code, the qualification level of the employee, his additional education may be indicated. If he has a disability, the group must be specified. All this data will help employees of the employment service to quickly find a suitable position for a dismissed person.

The report must be prepared by the employee who takes leadership position, or his substitute. The document is certified with a wet seal and signature.

What should an employee do when laid off?

Reducing employees during the economic crisis is a normal procedure for which everyone should be prepared. Understanding that an employee can be fired is quite simple. One has only to imagine whether production will suffer if a person quits of his own free will. If not, then the employer can easily reduce it at the first need. First of all, those who work unofficially are fired. Therefore, everyone should strive for employment in accordance with all the rules Labor Code RF.

Often, employees are faced with a proposal from their superiors to write of their own free will. Under no circumstances should such a statement be made. The benefits for the employer can be enormous. No need to pay severance pay and fill out a lot of paperwork. Dismissing a redundant employee is a lengthy and time-consuming procedure. But the employee can not terminate the contract at his own request. Not only will you not be able to receive severance pay, but also payments from the employment service will begin only three months after registration.

The notice of the employee about the reduction always comes in advance (no later than two months before the upcoming date of dismissal). During this time, everyone has the opportunity to find a decent job. In addition, the employer must offer workplace in another department if it is vacant. Valuable specialists are always valuable. Therefore, it is necessary to do your job conscientiously so that you are always in a good position.

Summing up

Staff reduction can occur without incidents if the employer performs it in accordance with the rules of the Labor Code of the Russian Federation. Do not despair if you had to sign a dismissal order. High qualifications and experience are of great importance. Good worker can always find the right vacancy. And specialists of the employment service of the population are always ready to help in this.

Often, in order to stay afloat, enterprises are forced to reduce employees or amend the staff list, excluding certain positions from there.

In such a situation, in order not to attract the attention of regulatory authorities, it is important to adhere to the norms of labor legislation. We will introduce you to the main ones in this article. You will find answers to questions: what category of workers cannot be reduced, how the selection and the reduction itself take place, what payments are due, and so on.

“Reduce cannot be fired”: we place commas correctly

Reducing the staff (amending the staff list) or the number of employees is a legitimate reason for the subsequent termination of the employment contract.

This clause, in particular, is provided for by clause 2 of part 1 of article 81 of the Labor Code of the Russian Federation.

If an employee falls under this category, dismissal is still unavoidable. However, despite the fact that the employer has the right to independently resolve issues related to the number of personnel and its optimization, the labor legislation contains a number of restrictions regarding the dismissal of certain employees.

Such increased "protective measures" are provided for:

pregnant women with staff reductions - an unconditional ban, stipulated by Article 261 of the Labor Code of the Russian Federation. Until it's all over maternity leave, i.e., in fact, before the child reaches 3 years old, it is allowed to dismiss an employee only in two cases: when the organization itself is liquidated or if it is not possible to transfer a woman to light work due to her position;
single mothers raising a child under 14 years old (if the child has a disability - up to 18 years old). Single fathers have similar rights;
employees who are on vacation or receiving medical treatment.

By agreement, you can dismiss:

workers of minor age (approval of the GIT plus commissions for the protection of the rights of minors is required);
members of the trade union (approval of the primary trade union organization is required, article 82 of the Labor Code of the Russian Federation).

In addition, there is a list of employees who are given the preferential right to remain in their workplace during the reduction. In accordance with Article 179 of the Labor Code of the Russian Federation, preference should be given to those employees who have higher productivity or qualifications.

If it is difficult to make a choice in favor of one or another employee due to similar indicators, the Labor Code of the Russian Federation proposes to be guided by certain features.

In particular, you need to take into account:

whether the employee has dependents, disabled family members, two or more children;
whether the employee is the sole breadwinner in the family;
whether the employee has an occupational disease or injury received at work;
whether the employee belongs to the category of invalids of military operations;
whether they comply with the requirements for professional development.

In life, of course, things do not always happen this way.

However, this requirement enshrined in the Labor Code can be used as a basis for defending one's own rights in court.

In this case, you will only need to prove that you work better, and your productivity differs from other employees who have remained in the state, an order of magnitude higher.

The only time when the age of an employee can be a reason for a reduction is the civil service, where the requirements are set at the level of federal law.

The reduction process: stages and their features

Since the labor legislation does not say in detail about the procedure for dismissal, on the basis of the Labor Code of the Russian Federation, a number of by-laws and generalizations from judicial practice, we have drawn up an approximate plan of action.

What should an employer do when laying off staff?

Making a decision related to the procedure. Economic substantiation of the expediency of the latter. This is a preliminary stage, which does not involve the preparation of official documents.
Amendments to the existing staffing table or drawing up a new one.
Issuance of an order (regarding the approval of the new schedule, the start of the reduction procedure, indicating the reasons and positions falling under it). Subsequently (after the completion of the procedure), you will need to draw up an order for the development job descriptions in accordance with the changed staffing table.
The choice of employees subject to the planned reduction, taking into account the provisions of the Labor Code of the Russian Federation, stipulating the preemptive right of employees to remain in the company (see above).

Notifying employees of upcoming layoffs. This is done in writing, against signature, two months before the actual reduction (with a short-term contract - three days, seasonal work- in one week). With the consent of the employee, the termination of the employment contract may follow a little earlier. In this case, the employee is paid additional compensation equal to the amount of wages for the days that were not worked.
Sending relevant notices to the employment service and the trade union, drawn up in any form.
The offer to employees of vacant positions (this includes both qualified jobs and lower, less paid jobs) that can be occupied by the employee and meet his state of health. In other words, the employer must offer all the vacancies that he has available and free. The creation of new jobs in order to save the staff in this case is not appropriate.
Directly issuing an order regarding dismissal (form T-8) ();
Preparation of the calculation, other payments provided by law in case of redundancy, plus the issuance of a certificate of the employee's earnings (at his request).
Making entries in the work book, personal card.
Issuance of the calculation and all documents on the last day of work of the dismissed employee.

What payments are due to the laid-off employee

First of all, this is the receipt of a full calculation, i.e., wages for the last month and monetary compensation for vacation, if the employee has not used it earlier in the current year. All bonuses due to the reduced employee are also subject to calculation and payment.

In addition to the funds earned by the employee (their compensation), he is paid a severance pay, the amount and procedure for providing which are established by Article 181 of the Labor Code of the Russian Federation. All payments must be made no later than the last business day. On the same day, the employee is given his work book.

In the absence of agreement between the employee and the employer on the amount of payments, the employee is paid its uncontested part.

The legislation also provides for the retention of wages for the period of employment of a laid-off employee.

This rule applies to a two-month period starting from the day of dismissal, but can be extended for another month. To do this, the employee must contact the employment service immediately after the reduction (no more than two weeks from the date of termination of the employment contract). If it is impossible to find a new job, payments of the average salary will be continued up to a three-month period.

What you need to receive funds for the second and third month

An employee who has fallen under the reduction must submit a passport and work book to the employer. In this way, he will be able to confirm that he is not yet employed and cannot provide for himself. When receiving funds for the third month, a decision from the employment service will be required.

Dismissal and conflicts: where to go

If there is a dispute about dismissal, the employee can go to court. In accordance with the 1st part of the 392nd article of the Labor Code of the Russian Federation, he is given one month for this from the moment he receives a copy of the dismissal order (work book).

The statement of claim may be accepted by the court later - subject to the presentation of documents confirming that the violation of the deadlines was caused by the presence of valid reasons. Read more about this.

Want to get fired right? Here step-by-step instruction. And do not forget that in case of dismissal due to staff reduction, an employee is entitled to severance pay.

Step-by-step instructions for dismissal to reduce staff

Step 1. We issue an order for the upcoming reduction in staff

The order is issued on the basis of any primary document:

the decision of the owners of the company on the optimization of staffing;

order of a higher organization or head enterprise, etc.

name and quantity staff units, which are subject to reduction;

timing and preparation time required documents;

responsible persons for the organization and preparation of documentation.

The order must be prepared at least 2 months before the planned reduction. If, with a reduction in staff, mass layoffs can follow, then at least 3 months in advance.

As an example of determining the mass dismissal, we can take the following figures (clause 1 of the Regulation approved by the Resolution of the Council of Ministers of the Russian Federation of 05.02.1993 No. 99):

50 or more people within 30 calendar days;

200 or more within 60 calendar days;

500 or more within 90 calendar days;

Or dismissal of 1 percent of the total number of personnel within 30 calendar days in regions with a total number of employees less than 5 thousand people.

Sample order on holding organizational and staff events

Step 2. We notify the trade union and employment authorities

1. Trade union.

If there is a trade union in the organization, it is necessary to send a notice of the planned reduction. The notice period is at least 2 months before the planned dismissal. If the reduction can lead to mass layoffs - not less than 3 months.

2. Public employment service.

This organization must be notified without fail, if employment contracts with employees will be terminated during staff reduction. If only positions in the staffing table are being reduced and no one is leaving, no notification is needed. The deadlines for sending are the same as for the trade union (for individual entrepreneurs, the notice period is 2 weeks, regardless of the number of dismissed people).

Sample Trade Union Notice

Sample notification of employment authorities

Step 3. Determine the circle of persons who have the preferential right to stay at work

If one of two identical positions is reduced in an organization, the employer faces a choice of which of the employees to keep. In accordance with article 179 of the Labor Code of the Russian Federation, employees with higher labor productivity and qualifications have the advantage of being left at work. Under equal conditions, the priority right shall be:

family employees with 2 or more dependents;

the only breadwinners in the family, regardless of the presence of children;

employees who have received an occupational disease or injury while working for this employer;

Chernobyl victims;

employees admitted to state secrets;

military spouses, etc.

The employer may expand this list by including other categories of employees in the collective agreement.

Step 4. We notify employees in writing of the upcoming dismissal

The employer is obliged to notify each downsizing employee in writing of the upcoming dismissal at least 2 months before his dismissal.

Sample Notice

The fact of the warning must be confirmed by the signature of the employee. If the employer does not have written confirmation, the employee will subsequently be reinstated at work.

If the employee is actually absent from work, the employer must send him a notice by registered mail with acknowledgment of delivery by mail. At the same time, it must be remembered that employees must be familiarized with the fact of their dismissal at least 2 months in advance, therefore, when sending a letter, it is necessary to take into account the delivery time.

Step 5. We offer employees other available vacancies in writing

The employer is obliged to offer all the reduced employees the vacant positions he has, which are not contraindicated for them for health reasons. At the same time, if vacancies are released from the employer during the reduction period, they should also be offered. If this is not done, the employee will be reinstated at work.

The fact of the offer of available vacancies must be recorded in writing.

If the employee refuses the offer, his refusal must also be recorded in writing.

If he refuses to sign, draw up an act, in the future you may need it in court.

Sample notice of available vacancies

Step 6. We get the opinion of the trade union about the reduction of the employee who is a member of this trade union

If the enterprise has a trade union, its opinion must be taken into account by the employer in accordance with Article 373 of the Labor Code of the Russian Federation (see Step 2). Ignoring this requirement entails the reinstatement of an employee who is a member of a trade union at work.

In total, the trade union has 7 days to develop its position on the issue of the dismissed employee. During this time, the employer must receive a reasoned opinion of the trade union, otherwise it can be ignored.

If the trade union agrees with the upcoming cuts, it will write so.

In case of disagreement of the trade union with the decision taken by the employer to reduce the employee, the employer must consult with the trade union within three days in order to find a compromise solution. These negotiations should be documented in minutes.

In general, the opinion of the trade union is advisory in nature, the final decisions remain with the employer, however, if the opinion of the trade union is ignored, it is possible to apply either to the labor inspectorate or directly to the court.

The courts often take the side of the employee, so it is very important to carry out this stage in strict accordance with the rules of the law and in specified dates in order to avoid a court decision on the reinstatement of an employee at work due to a procedural error made during organizational and staffing activities.

Step 7. We draw up the termination of the employment contract

An order to dismiss an employee to reduce staff is issued by.

Clause 2 of part 1 of article 81 of the Labor Code of the Russian Federation is indicated as the reason for dismissal.

Who can't be fired due to redundancy

The list of employees who cannot be fired due to staff reduction is set out in article 261 of the Labor Code of the Russian Federation:

pregnant women;

women raising children under the age of 3;

single parent raising a disabled child under the age of 18 or a child under the age of 14;

the sole breadwinner of a disabled child under the age of 18 or a child under the age of 3 in a family with three or more young children.

Payouts upon dismissal in case of staff reduction

The amount of redundancy pay is calculated on the basis of general order, established by article 139 of the Labor Code of the Russian Federation. As an additional compensation in case of redundancy dismissal, there may be a payment that is due to the employee in the event of his written consent to terminate the employment contract before the expiration of the notice period for the upcoming dismissal.

An example of calculating the payment of monetary compensation in 2016 for downsizing

To calculate the amount of compensation for dismissal due to staff reduction, all types of cash payments provided for by the remuneration system used in the organization are taken into account.

On the day of dismissal (regardless of the reason for dismissal), the employer is obliged to transfer to the employee all the funds due to him, including compensation for unused days of annual paid leave.

The size of this amount in this particular case does not matter, it can be anything, let's call it X.

The amount of payment X is included in the calculation of the average monthly salary of the employee, on the basis of which the employee will be compensated in connection with the reduction, let's call it Y.

Thus, on the last day of his work, the employee receives a cash payment equal to X + Y.

IN next month the employee will receive another payment equal to Y if he is not employed (the employer requires the original work book to be presented before making the accrual).

Further, if a person, within two weeks from the date of dismissal, registered with the employment agency and was not employed by him, and the employment agency, in turn, decided on the need to accrue a third compensation payment, the employee will receive another payment in the amount of Y.

If the employment relationship was terminated before the expiration of the two-month notice period for the upcoming dismissal at the initiative of the organization, and the person was dismissed with his written consent, the employer compensates him for the unworked time with a cash payment in the amount of average earnings (calculation is carried out in accordance with Article 139 of the Labor Code of the Russian Federation). In fact, this makes it possible for a person to start searching new work as soon as possible, without losing anything financially.

Penalty for violations of the order of dismissal to reduce staff

For non-compliance with the above rules, the employer may be held administratively liable under Article 5.27 of the Code of Administrative Offenses of the Russian Federation and fined up to 50 thousand rubles for each illegally dismissed employee.

In case of repeated violation, the fine can be up to 70 thousand rubles for each employee.

In addition, the employer will each time have to compensate the illegally dismissed employee for the earnings he did not receive for the entire time of forced absenteeism.

Plus, legal costs will also be reimbursed by the employer.

It is also important for employers and officials to know judicial practice on this account. One of the interesting cases was examined by the Supreme Court of the Russian Federation. It follows from the case file that the GIT received several complaints about violations committed by the employer during the reduction of staff. On these grounds, 2 unscheduled inspections were carried out, and in connection with the identification of violations, 2 different resolutions were issued to bring the employer's official to administrative responsibility under Part 1 of Art. 5.27 of the Code of Administrative Offenses.

However, the Supreme Court of the Russian Federation, by Resolution No. 41-AD18-21 of October 1, 2019, canceled one of the fines. According to the judges, in this case there were no two different offenses, therefore, it is possible to prosecute only once. The Resolution also states that the results of several inspections can be combined into one resolution on bringing to administrative responsibility if the same violations are revealed, as was the case in this situation.

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Reducing the number of employees is one of effective ways reduce costs or reduce the pace of production activities if the organization's product is no longer profitable. In the article we will tell you how to avoid mistakes when reducing the staff.

If the employer decides to reduce the number of employees, he needs to take into account all the nuances of this complex process. The mistakes made do not reduce, but, on the contrary, significantly increase the cost of personnel.

For example, the court may reinstate an employee at work and order the employer to pay him average earnings for the entire time of forced absenteeism (Article 394 of the Labor Code of the Russian Federation, hereinafter referred to as the Labor Code of the Russian Federation), as well as to compensate for moral damage (Article 237 of the Labor Code of the Russian Federation). In this case, the employer is obliged to pay all legal expenses (Article 88 of the Civil Procedure Code of the Russian Federation).

In addition, if an employee applies for the protection of his rights to the labor inspectorate, if the reduction is incorrectly drawn up, the employer faces administrative liability under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

Consider typical mistakes that employers do when they make redundancies.

1. INCORRECTLY DEVELOPING THE NOTICE OF REDUCTION

When warning employees about layoffs, it is necessary to take into account all the requirements of the law, as well as established practice, in order to reduce the risk of disputes in the future. We recommend that you issue a notice of reduction in the number (staff) of employees. The more detailed the document is, the less questions, misunderstandings and irritation it will cause among employees (Example 1).

2. EMPLOYEES ARE NOT NOTIFIED OF REDUCTION OR HAVE BEEN NOTIFIED IN VIOLATIONS

An important nuance is that absolutely all laid-off workers must be warned about the reduction and on time.

According to the second part of Art. 180 of the Labor Code of the Russian Federation, the employer is obliged to warn employees in writing against signature of their reduction at least two months before dismissal.

If the employee refuses to read the notice or sign for familiarization with it, then the employer will have to read the notice aloud to the employee and draw up an act in which two or three employees who were present at the time of familiarization must sign (Example 2).

However, there are exceptions to the notice period for an employee.

Several days notice. For example, if a fixed-term employment contract is concluded with an employee for a period of up to two months, then he must be warned about the reduction in writing at least three calendar days in advance (part two of article 292 of the Labor Code of the Russian Federation). An employee who is engaged in seasonal work should be warned in writing about the reduction at least seven calendar days in advance (part two of article 296 of the Labor Code of the Russian Federation).

Notice of sickness and vacation. If the employee needs to be notified of the reduction, and he is on vacation or on sick leave, it is better to wait for him to go to work and hand the notice in person. But if this is a remote worker or the management requires to notify the employee despite the vacation?

In this case, you need to send a notice of reduction to all known addresses where the employee is located by a valuable letter with a list of attachments and a notice of receipt (Example 3). The date of notification is the date the employee receives the valuable letter.

If the employee is available on the phone, you should call him and tell him about the need to receive a notification. Moreover, this must be done on a speakerphone and in front of witnesses. The conversation must be recorded in an act (Example 4). Such an act speaks of the employer's good faith and confirms that he has done everything possible to notify the employee of the reduction.

3. DO NOT OFFER ALL SUITABLE JOBS

If there are vacancies in the organization, they should be offered to the reduced employee (if they are suitable for him in terms of qualifications and health status) as they appear within two months, while the notice period for dismissal due to reduction is in effect (part three of article 81 of the Labor Code of the Russian Federation) .

Often, the courts reinstate workers precisely because they were not offered all the vacancies. The courts carefully check whether the positions in the staff list and in the job offers coincide (see, for example, the Appeal ruling of the Krasnoyarsk Regional Court dated February 2, 2015 in case No. 33-949 / 2015, A-9).

It is necessary to offer not only positions corresponding to the qualifications of the employee, but also subordinate ones.

QUESTION TO THE TOPIC

Do I need to offer a vacant higher position?

If you know for sure that the qualifications are insufficient, you do not need to offer this vacancy (see the Appeal ruling of the Moscow City Court dated March 30, 2015 in case No. 33-10408 / 2015).

But if it is not known for sure whether the employee can hold a higher position (perhaps he passed extra education or he has experience that is not reflected in the work book), the risk of disputes increases. To do this, we propose in the notice of reduction to report on qualification documents unknown to the employer (see Example 1).

Thus, you need to ensure that there are no extra vacancies in the staff list (just in case). All vacancies that are not yet searched should be excluded.

An employer is obliged to offer vacancies only in a given locality, unless otherwise provided by the labor or collective agreement (see the Appeal ruling of the Moscow City Court of December 24, 2012 in case No. 11-25754).

It should be noted that the position held by a woman on maternity leave is not considered vacant in the opinion of most courts (see, for example, Ruling of the Moscow City Court dated May 29, 2014 No. 4g / 8-3516). This position is temporarily vacant - after all, a woman can return, and we do not know when - in three months or in three years.

4. REDUCING "PROTECTED" WORKERS

Despite the fact that it is the right of the employer to determine the organizational structure and staffing, the law protects certain categories of workers who need state support. "Protected" workers include:

Pregnant woman (part one of article 261 of the Labor Code of the Russian Federation);

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

A single mother raising a child under 14 or a disabled child under 18 (or a person raising such a child without a mother) (part four of article 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, a single mother is considered a woman who brings up her children (relative or adopted) and is engaged in their development independently, without a father. In particular, if the father:

Died, recognized as missing (you need to ask the employee for a death certificate, a corresponding court decision);

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

Recognized as incapable (partially incapacitated) or for health reasons cannot personally raise and support a child (court decision or certificates, for example, on disability);

Serving a sentence in institutions that carry out punishment in the form of deprivation of liberty (corresponding certificate);

Avoids raising children or protecting their rights and interests. It's about about divorced women who applied for the recovery of alimony to the court and the bailiff service, but, despite this, it was not possible to recover the alimony (certificate from the bailiff service that it was not possible to recover the alimony);

Other situations (for example, when the paternity of the child is not established and there is a dash in the birth certificate);

A parent, if he is the sole breadwinner of a child under three years of age or a disabled child under 18 years of age in a family of three or more children under 14 years of age and the other parent (representative of the child) is not in an employment relationship (part four of article 261 of the Labor Code of the Russian Federation) .

To reduce the risks of litigation, it is better not to lay off such workers.

Also note that employees under the age of 18 can be fired due to layoffs only with the consent of the labor inspectorate and the commission on minors (Article 269 of the Labor Code of the Russian Federation).

In addition, if an employee is a member of a trade union, he can be fired only in agreement with the primary trade union organization (part two, Articles 82, 373 of the Labor Code of the Russian Federation).

And finally, do not dismiss an employee during his period of temporary disability and during his vacation (part six of article 81 of the Labor Code of the Russian Federation, subparagraph “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. THE PRIORITY RIGHT TO STAY AT WORK IS NOT ACCOUNTED

With such a problem, when reducing, you can encounter if there are several positions of the same name in the staffing table. For example, there are three sales managers in a department, and only one needs to be cut. In this case, the first part of Art. 179 of the Labor Code of the Russian Federation requires that the employer, during the reduction, leave at work workers with higher labor productivity and qualifications.

Qualifications can be checked against the document on education and work book, however, the assessment of labor productivity will require certain efforts from the employer.

How to evaluate labor productivity? It is not difficult to assess the productivity of working personnel - it is enough to find out whether employees comply with labor standards (time and output). The situation is much more complicated when it comes to evaluating the productivity of knowledge workers. Here are some hints:

1. If the organization conducts an annual assessment of personnel, we recommend that you attach its results. The results of the attestation, if any, will also be useful.

2. If the organization has established bonus indicators, the productivity of employees can be assessed by the size and frequency of bonuses accrued to them. You can also take into account the regular performance of additional work (for example, part-time or by special order). We recommend to evaluate the work discipline of the employee. If discipline is low or there are comments, reprimands, then such an employee has no preemptive right.

How to document performance appraisal. The first step is to issue an order to create a commission to determine the pre-emptive right to leave at work. The order must contain the following provisions:

The results of the assessment must be indicated 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 employees. Tables should be attached to the protocol with an assessment of the fulfillment by employees of production or service standards, plans, instructions, etc. (see table).

If the productivity and qualifications of workers in the same positions are approximately equal, you should go further and give priority to the following categories (part two of article 179 of the Labor Code of the Russian Federation):

Family with two or more dependents;

Persons in whose family there are no working family members;

Employees who, while working in the organization, received an industrial injury or occupational disease;

Disabled people of the Great Patriotic War and military operations;

Employees who improve their skills on the job in the direction of the employer;

Such employees should be asked to provide supporting documents. For example, an employee with two or more children must provide birth certificates, as well as a passport with registration confirming residence with children; combat invalid - certificate.

6. DO NOT NOTIFY THE EMPLOYMENT SERVICE AND THE TRADE UNION

In accordance with paragraph 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032 - 1 "On employment in Russian Federation”(as amended on 07/29/2017, hereinafter - Law No. 1032-1) to reduce the number or staff, even if only one position or one employee is reduced, the employment service must be notified no later than two months in advance. If the reduction is massive - three months before the start of the reduction. Each region has its own form of notification. It should be specified on the websites of the employment service of the regions. Let's give an example of a notification for Moscow (Example 5).

The criterion of mass character is determined by sectoral, territorial or regional agreements between trade unions and employers (part one, article 82 of the Labor Code of the Russian Federation).

If these agreements are not applicable to a particular employer, paragraph 1 of the Regulations on the organization of work to promote employment in conditions of mass dismissal (approved by Government Decree No. 99 of February 5, 1993) should be followed.

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

7. PERSONNEL DOCUMENTS ARE ISSUED WITH ERRORS

Design errors personnel documents can lead to fines and even reinstatement of the employee. To avoid them, it is necessary to carefully draw up his dismissal on the last day of work (paragraph two of the first part of Article 84.1 of the Labor Code of the Russian Federation, clause 35 of the Decree of the Government of the Russian Federation of April 16, 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 must be familiarized with the signature. In case of refusal to familiarize, it is necessary to draw up an appropriate act, which must be signed by two or three employees (Example 8).

We make a note-calculation. A note-calculation is a mandatory document for publication and is sent to the accounting department on the day the employee is dismissed. It is issued either in the unified form No. T-61 or in the form approved by the organization. In it, the personnel officer reflects the number of days of unused or used leave in advance (Example 9).
We make an entry in a personal card. An entry must be made about the dismissal of an employee in section XI of the personal card of form No. T-2, with which the employee must be familiarized against signature (Example 10).

Issue a work book. On the day of dismissal, the employee must be given a work book with a record of dismissal (Article 84.1 of the Labor Code of the Russian Federation) against signature in the work book record book (Example 11).

If an employee refuses to receive a work book, an act must be drawn up about this signed by two or three employees (Example 12).

If the employee did not appear for the work book, it is necessary to send him a notification before the end of the working day about the need to pick up the work book (Example 13) or give written consent in any form to send it by mail (part six of article 84.1 of the Labor Code of the Russian Federation). It is better to send a notification to all known addresses of the employee in order to increase the likelihood of receiving it.

We issue certificates. Upon dismissal, the employer is also obliged to issue to the employee:

A certificate of the amount of his earnings, on which insurance contributions to the Social Insurance Fund were accrued (part 2 of article 4.1 of the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance in case of temporary disability and in connection with motherhood”);

Certificate with information on accrued and paid insurance premiums to the Pension Fund of the Russian Federation (Article 11 of the Federal Law of 04/01/1996 No. 27-FZ "On Individual (Personalized) Accounting in the System of Compulsory Pension Insurance").

8. LEAVING THE STAFF

The position of the dismissed employee should be excluded from staffing the day after he was fired. If an employee is dismissed on September 30, then from October 1 this position should not be on the staff list.

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

9. THE EMPLOYEE IS WRONGLY ESTIMATED

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

The amount of wages is determined in the amount that is due to the employee for the time actually worked in a given month. Compensation for unused vacation must be calculated in accordance with Art. 121 of the Labor Code of the Russian Federation.

If on the last day of work the employee is not paid off, the employer must pay the employee interest under Art. 236 of the Labor Code of the Russian Federation in the amount of not less than 1/150 of the key rate of the Central Bank of the Russian Federation in force at that time for each day of delay, regardless of the fault of the employer. The employer is obliged to pay the average earnings for the second and third months if the employee has not found a job.

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

If an employee has not found a job and wants to receive severance pay for the third month, he must comply with the following conditions:

Within two weeks after dismissal, register with the employment authority as unemployed;

Be unemployed by this employment agency within the third month after dismissal;

Provide the employer with the decision of the employment authority on the payment of the average monthly salary to the employee for the third month.

If the employment service makes such a decision, the benefit will have to be paid for the third month.

Note: if the organization or its branches are located in the regions of the Far North or areas equivalent to them, then in accordance with Art. 318 of the Labor Code of the Russian Federation, the average earnings of laid-off workers remain for up to three months. In exceptional cases - up to six months (by decision of the employment service).

In conclusion, we present step by step algorithm reduction in the number of employees (flowchart).

Domestic companies are having a hard time with the economic crisis, so the optimization of personnel is no longer a rarity.

Some enterprises are simply closed, some are changing their profile of activity, in any case, they all want to receive a stable profit in the changed economic conditions.

And this often leads to forced downsizing. But the dismissal procedure, even in this case, is not so simple, you need step-by-step instructions to help you do everything according to the rules.

In such situations, the company itself initiates the termination of the working relationship, so the dismissed are protected by law and can count on guaranteed compensation.

The pre-downsizing stage is an analysis financial position companies. Its results should be presented in a report for management, presented by the chief accountant or heads of production departments.

It usually refers to a decrease in profitability, which indicates that the company is incurring additional financial losses. The usual way to minimize them is to review the number of posts. So, let's look at how the procedure for dismissal to reduce staff goes.

Approval of the new staffing table

One of the grounds that makes it possible to terminate employment contracts at the initiative of employers is the adjustment of the staffing table and the corresponding reduction in the staff and number of workers.

Until the moment of reductions, the directorate and the personnel department determine whether only the number of employees will be reduced, or the official staff will also be reformed.

By general rules, the new schedule is introduced no earlier than two months from the date of notification of employees whose positions have been reduced.

Notification of the employment service authorities

With a focus on the orders to be issued, several more notifications must be prepared in advance and without fail. The first is for the employment service.

According to the standards prescribed in Article 25 of the Federal Law No. 1032 - 1, first the enterprise is obliged to notify the Employment Center. The document states the intention to reduce some of the employees and that the company needs to find new vacancies for them.

Further, the inspector of the Labor Exchange, focusing on the information received, in short terms prepares and submits a list of proposed jobs.

It is formed taking into account the qualification data and the salary level of the released employees.

If there were no acceptable vacancies at the time of dismissal, but provided that the person was registered with the Exchange within 14 days from the date of termination of employment, the search for jobs will continue.

At the same time, payment of benefits is guaranteed for another 30 days. In exceptional situations, the allowance is paid for two months.

Trade Union Notice

As soon as an order is issued confirming the optimization of the state, the Trade Union Organization must be notified.

Especially in the case when mass layoffs are planned, and this is at least 5% of the total number of employees.

And also, if representatives or members of the Trade Union Organization itself are fired.

This situation obliges the enterprise to notify the Trade Union 90 days before the start of the reductions, in accordance with Article 82 of the Labor Code of the Russian Federation. In particular cases, the notice period can be reduced to 60 days, it all depends on the financial situation of the enterprise.

Who can and cannot be laid off

First of all, positions as such will be reduced if they are no longer needed by the company due to production reasons.

As soon as a position is selected, an assessment of employees will begin, namely: their qualifications, skills, benefits brought to the company now and in the future. The social position will be considered only if the above indicators are equivalent for several employees. Minor children, dependents, disability, services to the organization are taken into account.

This state filtering scheme is based on priority right for abandonment, with optimization used on the basis of Article 179 of the Labor Code of the Russian Federation. However, this scheme for assessing the qualifications and other labor skills of an employee is not always used. There are preferential categories, the company's management cannot dismiss them on their own initiative.

Who can't be made redundant? For example, when reducing staff (positions), do not dismiss the following categories:

Pregnant.
Single fathers and mothers, until the child is 14 years old.
Those who are on maternity leave, regardless of gender.
Employees with dependents.

But such benefits do not apply to the disabled and pensioners.

Employee warning

60 days before the reduction, the company's management is obliged to notify employees by handing them the appropriate document.

There is no statutory standard, but there is mandatory conditions regarding the information it contains. This is stipulated in Article 180 of the Labor Code of the Russian Federation.

In fact, the organization not only announces the date of the reductions, but also gives good reasons that prompted the termination of employment contracts.

At the same time, the management offers vacant positions within the enterprise, even if they require lower qualifications or are paid lower.

It must be understood that the employee's refusal to receive such a notification cannot be taken as a reason for the abolition of the state reformation, or the postponement of the date of dismissal. And yet, a document confirming the start of the reduction process is handed over in front of witnesses. In case of refusal to receive, an act is drawn up attached to the described notification.

At the current time, each employee is reliably protected by the Labor Code of Russia and other regulations. This stops the arbitrariness of unscrupulous employers, preventing a hasty dismissal, even if it is justified.

Offer of alternative vacancies

In fact, while minimizing the staff caused by production reasons, the company is obliged to offer each of the employees another vacancy.

Regardless of whether they differ in salary and skill level.

If the downsized employee does not agree to take the proposed position, or the company cannot offer him anything, the employee has 60 days to look for work in another company.

When a suitable vacancy is not found, he is entitled to receive benefits.

Issuance of a notice of dismissal

Focusing on legislative norms, the dismissal of an employee with the reason "staff reduction" becomes real only if all stages of the procedure are followed, each of which is regulated by by-laws.

If one of the stages was skipped, then the dismissed person has the right to decide through the court the issue of recognizing the dismissal as unauthorized. He has exactly a month to do this after he receives the appropriate order in his hands.

On the basis of the above-mentioned report, a decision is made to withdraw part of the posts from the staff, for which appropriate orders are issued.

First of all, an order is issued on the changes made to the state (the basis is economic analysis company position).

It must be submitted to employees at least 90 days before the start of the release procedure.

Such an order cannot be classified as an administrative document confirming the termination of the relationship between employees and the organization. But it is the basis for starting such a procedure.

This is followed by the submission of administrative documents on the reduction of staff. This is the next logical step in the process of laying off workers. The documents contain objective information about termination of employment due to layoffs. They are issued no later than 60 days before the termination of employment contracts.

It should be noted that it is not fixed anywhere in law that an order cannot be issued earlier than the agreed time.

This means that it can be formed earlier, but the entire set of documents required to accompany this order is handed over no later than 60 days before the dismissal.

Settlements with employees, payments and compensations

How to properly lay off a layoff worker?

According to the standards of Article 140 of the Labor Code of the Russian Federation, after the termination of the employment contract, the organization undertakes to pay wages to the dismissed and compensate for all vacation days not used by employees.

Due to the reduction of the position, the employee has the right to count on the allowance assigned by Article 178 of the Labor Code of the Russian Federation (in the amount of the average monthly salary).

There are precedents (due to the special conditions prescribed in the collective agreement) that affect the increase in the amount of the allowance, but it still cannot be more than three salaries. Usually these reservations apply to managers, or in companies with unlimited financial reserves.

According to Article 178 of the Labor Code of the Russian Federation, laid-off workers retain the right to receive benefits for the second month if they were unable to find a job and provided a work book without a note about a new position in another place, supported by an application for benefits.

Exceptional conditions suggest that the employee can be paid benefits for the third month, but for this he must have in his hands the relevant certificates from the Employment Center, indicating that there are no suitable vacancies.

Upon dismissal of an employee, the mandatory payment of benefits lies with the organization, and even after two months after the release, if former employee provides all supporting documents - the appointed compensation is also paid by the employer.

Preparation and delivery of work book

Regardless of what was the basis for the dismissal of the employee, the directorate of the organization is obliged to issue a work book to the employee, observing all the norms specified in Article 84.1 of the Labor Code of the Russian Federation.