Procedures in a company, such as reducing the number or staff, are quite painful, not only for employees, but also for employers. For the worker, this means the need to seek new job, and the employer may have to prove that the dismissal took place in compliance with the requirements of the law. In the article, we will consider the difference between downsizing and downsizing, as well as the procedure that the employer must follow.
What is an abbreviation
Dismissal by reduction is such a way of terminating the relationship between the employer and the employee, which is usually accompanied by conflicts of the parties. In such situations, dismissed workers quite often go to court to reinstate their jobs. And if the employer makes any mistakes when dismissing, then most likely the employee's claim will be satisfied.
Stage 1: Making a decision to reduce employees
When deciding on a reduction, the employer should decide what kind of reduction will be carried out: staff or number. Moreover, a situation is also possible in which both a reduction in the number and a reduction in the staff are carried out simultaneously.
The main difference will be as follows: in the event of a reduction in staff, there is an exception to staffing certain positions, and when carrying out a reduction in the number of positions in a certain position, the number of staff units is reduced.
The decision of the head is issued in the form of an order, which indicates the date the new staffing table is put into effect (or changes are made to it).
Important! When determining the date in the order, the employer must take into account the period for notifying employees of a future reduction. Recall that the employer must notify employees of the reduction two months in advance. This means that the new staffing table can be put into effect no earlier than 2 months after the issuance of the order.
Stage 2: Determination of the list of "unretired" employees
Having decided on the need for reduction, the employer decides on the employees who need to be fired. At this stage, it should be remembered that individual employees cannot be fired, and some have the right to preferential retention at work.
It is forbidden to reduce the following categories of workers:
- pregnant women;
- women with children under the age of 3;
- single mothers and other persons raising a child without a mother or raising a disabled child under 18;
- single parents raising a child under 14;
- parents (legal representatives) who are the sole breadwinners of a disabled child under 18;
- parents (legal representatives) who are the sole breadwinners of a child under 3 years old in a family with 3 or more young children, if the other parent is not employed.
Important! When making a decision on “non-dismissible” employees, the age of their children at the date of dismissal should be taken into account.
Step 3: Identify Employees Who Have Preemptive Right to Remain at Work
According to 179 of the Labor Code of the Russian Federation, in the event of a reduction, personnel with higher qualifications and labor productivity have the priority right to leave. Employees can use this right only in case of downsizing. When reducing staff, the application this rule impossible, since it is possible to compare employees only if they perform the same functions. If several employees have the same productivity and qualifications, then preference is given to the following categories of employees:
- family, if the family has 2 or more dependents;
- the rest of whose family members are unemployed;
- who have received an injury or occupational disease as a result of work in this organization;
- disabled veterans of the Great Patriotic War, invalids of painful actions;
- improving qualifications in the direction of the employer without interruption from work.
Stage 4: Notifying employees of layoffs
An employee must be given at least 2 months notice of a future layoff. Each employee is notified personally in writing. The legislation does not provide for a special form of notification, so the employer can develop it on his own. This notice must include the reasons for and the date of the reduction.
Upon receipt of such notice, the employee must read it and put his signature. This signature will be a confirmation that the employer has complied with the legal requirement to notify the employee of the reduction in due time and properly. You can also send a notification to the employee earlier than the stipulated period, for example, not 2, but 3 months in advance.
- for employees who work fixed-term contract, the term of which is less than 2 months - the notification is sent 3 calendar days in advance;
- for employees engaged in seasonal work - notification is sent 7 calendar days in advance.
Stage 5: Offering the employee another vacant position
The obligation of the employer is to offer the reduced employee other vacant positions, including lower and lower paid positions. How exactly the employer is obliged to make such an offer is not defined by the legislation. However, it will be important for the employer to have confirmation of such an offer, so it must be issued in writing and in two copies. One of them will remain with the employee, and the second with the signature of the employee will be kept by the employer.
Important! In order not to write several letters to the employee at once, the notice of reduction and the offer of a vacant position are usually combined into one document.
If new vacancies appear after the employee has been notified, the employer may submit an offer later.
Stage 6: Notification of the employment center
Having made a decision to reduce, the employer is obliged to send a notice to the employment service. This should be done at least 2 months before the date of dismissal. In case of mass dismissal - for 3 months. Such a notification is sent regardless of how many people are planned to be laid off in the company.
Step 7: Notice to the trade union organization
If the company has a union, then the reduction will need to be notified to them as well. This should also be done within 2 months before the start of the reduction. And in case of mass layoffs - not less than 3 months. The trade union must be notified in writing.
Stage 8: Registration of dismissal
If the employee agreed to another position, then a transfer is made. Otherwise, the employee is fired on the basis of the order of the head. After that, the employee should make a settlement. He is paid a salary, compensation for non-vacation leave and severance pay. After that in work book a record is made and it is handed over to the employee.
Downsizing or downsizing - what's the difference?
Thus, the main difference between staff reduction and headcount will be as follows:
Answers to common questions
Question: What should I do if I need to reduce a certain position in the staff list, but an employee works in this position and cannot be fired?
Answer: This position cannot be reduced. In this case, the employee can be offered to transfer to another position. But in case of refusal on his part, you cannot force him. The employee will have the right to remain in his position, and the employer will only have to wait for the moment when the employee's status of "non-dismissible" disappears.
Reducing the number or staff of employees of an organization, an individual entrepreneur is one of the grounds for termination employment contract at the initiative of the employer, which are indicated in Part 1 of Art. 81 of the Labor Code Russian Federation.
Despite the fact that the procedure for reducing the number or staff of employees is clearly regulated by labor legislation, unscrupulous employers often use this ground in an attempt to reduce the cost of remuneration of employees, and sometimes simply wanting to terminate an employment contract with an objectionable employee, because they “find” another legal basis it is very difficult to dismiss a disciplined employee, but here the employer is given relative freedom (the law allows him to independently determine the size and structure of the organization).
Nevertheless, the Labor Code of the Russian Federation provides for employees dismissed due to a reduction in the number or staff, certain guarantees and compensations, imposing the obligation to provide them on the employer, therefore, if the employer fails to comply with the procedure for reducing the number or staff, fails to provide guarantees specified by law, the dismissed employee may apply to the authorities for the protection of their rights.
As they say, forewarned is forearmed, so let's analyze the specified grounds for dismissal in detail.
The concept of "reducing the number or staff of employees of an organization, an individual entrepreneur"
Consider what is meant by the concept of "reducing the number or staff of employees of an organization, an individual entrepreneur."
In fact, the legal definition of this concept Russian legislation does not contain. However, in practice it is customary to break the indicated basis into two independent ones:
1. Reducing the number of employees
2. Reducing the staff
At the same time, downsizing is usually understood as a decrease in the number of staff units (i.e., the number of employees) for a certain position. For example, instead of seven secretaries, four remain on the staff list. This usually happens if there is work, but its volume does not match the number of workers hired to do it.
Reduction of staff implies the complete exclusion from the staff list of some positions, when the employer decides to exclude production from its activities certain work. That is, if we refer to the example given above, all employees holding the position of "secretary" will be dismissed.
The fundamental difference here is that employees who are laid off due to staff reductions are actually deprived of such a statutory guarantee as a pre-emptive right to remain at work, since in this case all employees who occupy a certain position, that is, the employer does not have to choose which of the employees to leave and who to fire. Accordingly, for an employee, a more dangerous type of ground for dismissal specified in paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, is a reduction in staff.
Nevertheless, let's consider which categories of workers the legislator has given the preferential right to stay at work when reducing the number or staff of employees.
So, part 1 of Art. 179 of the Labor Code of the Russian Federation, it is determined that in the event of a reduction in the number or staff of employees, the priority right to remain at work is granted to employees with higher labor productivity and qualifications. Moreover, in paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 04 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, it is noted that termination of an employment contract with an employee under paragraph 2 of part one of Article 81 of the Code is possible only on condition that he did not have the preferential right to remain at work. At the same time, if everything is relatively clear with qualifications, the legislator has not fixed any list of criteria for higher labor productivity, therefore, when deciding on the labor productivity of workers subject to dismissal due to a reduction in the number or staff, the employer is guided, first of all, by subjective opinion that has developed about a particular employee during the performance of his labor functions.
It is important to point out that if the qualifications and/or productivity of several workers subject to downsizing or staffing are equal, then preference should be given to the following workers:
1. Family - if there are two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood)
2. Persons in whose family there are no other self-employed workers;
3. Employees who received during the period of work this employer work injury or occupational disease;
4. Disabled Great Patriotic War and invalids of military operations for the defense of the Fatherland;
5. Employees who improve their skills in the direction of the employer on the job.
The legislation also provides for other categories of employees enjoying the right of preferential retention at work:
1. Citizens of the Russian Federation who were exposed to radiation as a result of nuclear tests at the Semipalatinsk test site, who received a total (accumulated) effective radiation dose exceeding 25 cSv (rem) (clause 10, part 1, article 2 of the Federal Law of 10.01.2002 N 2-FZ “On Social Guarantees for Citizens Exposed to Radiation as a Result of Nuclear Tests at the Semipalatinsk Test Site”).
2. Heroes and full cavaliers of the Order of Glory (part 1 of article 8 of the Law of the Russian Federation of 15.01.1993 N 4301-1 “On the status of Heroes Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory").
3. Citizens who have received or suffered radiation sickness and other diseases associated with radiation exposure due to the Chernobyl disaster or with work to eliminate the consequences of the disaster at Chernobyl nuclear power plant; as well as disabled people due to the Chernobyl disaster from among:
Citizens (including those temporarily sent or seconded) who took part in the liquidation of the consequences of the disaster within the exclusion zone or engaged in operation or other work at the Chernobyl nuclear power plant;
- military personnel and persons liable for military service called up for special training and involved in the performance of work related to the liquidation of the consequences of the Chernobyl disaster, regardless of the place of deployment and the work performed, as well as persons in command and rank and file of internal affairs bodies, the State Fire Service, who were (are) serving in the exclusion zone;
- citizens evacuated from the exclusion zone and resettled from the resettlement zone or who voluntarily left these zones after the decision to evacuate was made;
- citizens who donated bone marrow to save the lives of people affected by the Chernobyl disaster, regardless of the time that has passed since the bone marrow transplantation, and the time they have developed disability in connection with this (clause 7, part 1, article 14 of the Law of the Russian Federation dated 05/15/1991 N 1244-1 "On social protection citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant).
4. Spouses of military personnel of citizens, other things being equal, have the preferential right to remain at work in government organizations, military units with a reduction in the number or staff of employees (part 6 of article 10 of the Federal Law of 05.27.1998 N 76-ФЗ “On the Status of Military Personnel”).
5. Officials and citizens admitted to state secrets on a permanent basis (paragraph 3, part 5, article 21 of the Law of the Russian Federation of July 21, 1993 N 5485-1 “On State Secrets”).
6. Inventors (persons who have a patent for an invention) (part 5 of article 35 of the USSR Law of May 31, 1991 N 2213-1 “On Inventions in the USSR”).
However, according to part 3 of Art. 179 of the Labor Code of the Russian Federation, a collective agreement may provide for other categories of workers who enjoy the preferential right to remain at work with equal labor productivity and qualifications. However, it is important to understand that the employer may give preference to the categories of workers specified in the collective agreement in leaving them at work only if there are no workers enjoying this right by virtue of the current legislation.
It must be remembered that with pregnant women, women with children under the age of three, single mothers raising a child under the age of 14 (a disabled child under 18), other persons raising these children without a mother (Article 261 of the Labor Code Russian Federation), by employees under the age of 18 (Article 269 of the Labor Code of the Russian Federation), an employment contract can be terminated only in the event of the liquidation of the organization, i.e. the employer is not entitled to reduce the positions occupied by such employees.
Besides:
Termination of an employment contract with employees under the age of 18 (except in the event of liquidation of the organization or termination of activities individual entrepreneur) in addition to observing the general procedure, dismissal is allowed only with the consent of the relevant state labor inspectorate and the commission for minors and the protection of their rights (Article 269 of the Labor Code of the Russian Federation);
Representatives of employees participating in collective bargaining, during the period of their conduct, cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent, except in cases of termination of the employment contract for a misdemeanor, for which, in accordance with the Labor Code of the Russian Federation, other federal laws dismissal from work is provided (part 3 of article 39 of the Labor Code of the Russian Federation);
Representatives of employees, their associations participating in the resolution of a collective labor dispute during the period of resolution of a collective labor dispute cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent them (part 2 of article 405 of the Labor Code of the Russian Federation).
The procedure for reducing the number or staff of employees
Now it is necessary to pay attention to the procedure for reducing the number or staff of employees of an organization, an individual entrepreneur.
First of all, by virtue of Part 1 of Art. 82, the employer is obliged to notify in writing the decision to reduce the number or staff of employees of the organization, individual entrepreneur and the possible termination of employment contracts with employees in accordance with paragraph 2 of part one of Article 81 to the elected body of the primary trade union organization no later than two months before the start of the relevant measures, and if the decision to reduce the number or staff of employees may lead to mass layoffs of employees - no later than three months before the start of the relevant activities. Mandatory written notice trade union body and compliance with the deadlines for such notification provided for by the Labor Code is also emphasized in paragraph 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”.
Moreover, according to paragraph 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 "On employment in the Russian Federation" when deciding to reduce the number or staff of employees of an organization, an individual entrepreneur and the possible termination of employment contracts, the employer-organization no later than two months, and the employer - an individual entrepreneur, no later than two weeks before the start of the relevant events, is obliged to notify the employment service authorities in writing, indicating the position, profession, specialty and qualification requirements to them, the terms of remuneration for each specific employee, and if the decision to reduce the number or staff of the organization's employees can lead to mass layoffs of employees, - no later than three months before the start of the relevant activities.
At the same time, the criteria for mass dismissal, according to Art. 82 of the Labor Code of the Russian Federation are determined in sectoral and (or) territorial tariff agreements. So, for example, in paragraph 4.8. "Sectoral tariff agreement in the electric power industry of the Russian Federation for 2013 - 2015" establishes the following criteria for the mass dismissal of workers:
Dismissal in 30 days over 7% of average headcount employees, but not less than 25 people.
. Dismissal for 60 days over 11.5% of the average number of employees, but not less than 50 people.
. Dismissal in 90 days of more than 20% of the average number of employees, but not less than 100 people.
However, for different industries, such criteria may be different.
Another direct obligation of the employer when carrying out measures to reduce the number or staff is to warn the employee about the upcoming dismissal due to a reduction in the number or staff of employees. Moreover, in accordance with Part 2 of Art. 180 of the Labor Code of the Russian Federation, the employee must be warned of the dismissal personally and against signature at least two months before the dismissal.
However, by virtue of h. 3 Article. 180 of the Labor Code of the Russian Federation, the employer has the right, with the written consent of the employee, to terminate the employment contract before the expiration of the two-month notice period for dismissal, paying him additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice period for dismissal.
Also, by virtue of Part 1 of Art. 180 when carrying out measures to reduce the number or staff of the organization's employees, the employer is obliged to offer the employee another available job (vacant position). At the same time, another work is understood as vacant position or a job corresponding to the qualifications of the employee, as well as a vacant lower position or lower-paid work that he can perform, taking into account the state of health.
According to part 3 of Art. 81 the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area; and the employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.
It is important to know that the employer is obliged to offer the employee vacancies not only on the day of the warning, but also during the entire period of the warning.
Another condition, without which dismissal due to a reduction in the number or staff will not be legal, is accounting by the employer motivated opinion the elected body of the primary trade union organization in case of dismissal due to reduction of employees who are members of the trade union. The procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization when terminating an employment contract at the initiative of the employer is defined in Art. 373 of the Labor Code of the Russian Federation.
It is important to say that in any case, the reduction in staff must be real. This means that the employer must issue appropriate orders (orders) on carrying out measures to reduce the number or staff of employees (an order to reduce the number or staff of employees, an order to approve a new staffing table, etc.) If the employer has not issued such documents, you can prove the fictitious reduction and demand reinstatement.
Another sign of fictitious reduction is when, after the dismissal of an objectionable employee, a position similar to that held by the dismissed employee is again introduced into the staffing table, or after the reduction in the number, there is an increase immediately.
So, often employers believe that it is possible to create a new vacancy and hire a new employee after one month from the date of dismissal of the employee, since one month is the statutory period within which a dismissed employee can file a lawsuit against the employer regarding his dismissal. After the expiration of this period, the plaintiff is not entitled to bring a claim against the defendant, except if the court, having considered the case materials, decides to restore the period for a good reason. However, this is not quite true.
Let us turn to the ruling of the Constitutional Court of the Russian Federation of December 17, 2008 No. 1087-О-О. In the specified definition, the Constitutional Court of the Russian Federation notes that a dismissed employee can find out about the restoration of the position previously occupied by him in the staff list only after the expiration of the period provided for in Part 1 of Art. 392 of the Labor Code of the Russian Federation. In addition, only the court establishes circumstances that indicate a violation of the rights of the employee, which he did not know and could not know at the time of handing him a copy of the dismissal order or issuing a work book. Therefore, the court, considering in order h. 3 Article. 392 of the Labor Code of the Russian Federation, the corresponding petition is not entitled to refuse to restore the missed procedural period without examining the actual circumstances of the case, which may serve as the basis for such restoration.
Simply put, the Constitutional Court recommends that labor courts consider cases on reinstatement in cases where a fictitious reduction can be seen, and in such cases restore the term.
Other guarantees and compensations
In addition to all of the above, the state imposes on the employer economic obligations to the dismissed employee.
Article 178 of the Labor Code guarantees employees to receive a severance pay in the amount of their average monthly earnings, as well as to keep their average monthly earnings for the period of employment, but not more than 2 months from the date of dismissal, including the severance pay. In order to receive the saved average monthly earnings, the employee must provide former employer an application, as well as a work book, where there will be no new record of employment for another job.
The employee is also entitled to count on the third monthly salary. But this right arises only if the employee was recognized as unemployed, and the employment service decided to pay the third average monthly salary.
In accordance with Art. 318 of the Labor Code of the Russian Federation to employees dismissed under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation from organizations located in the regions of the Far North and equivalent areas are paid a severance pay in the amount of the average monthly salary, they also retain the average monthly salary for the period of employment, but not more than 3 months from the date of dismissal (with offset of the severance pay ). In exceptional cases, the average monthly salary is retained by the specified employees for the 4th, 5th and 6th months from the date of dismissal by decision of the public employment service agency, provided that within a month after the dismissal, the employees applied to this agency and were not they are employed.
In addition, on the last working day, the employee must be transferred the amounts for unused annual leave.
So, in order for the dismissal due to a reduction in the number or staff to be legal, the employer must comply with the following conditions:
Support the reduction in the number of employees or staff of the organization, individual entrepreneur with documents confirming its "reality";
. no later than 2 months (and in case of mass dismissal - no later than 3 months) notify in writing the elected body of the primary trade union organization and the employment service bodies of the decision;
. take into account employees who have a priority right to remain at work;
. warn employees about the upcoming dismissal at least 2 months before the dismissal, personally and against signature;
. offer the employee a transfer to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, or a vacant lower position, or lower paying job), which the employee can perform taking into account his state of health;
. in cases stipulated by labor legislation, take into account the opinion of the elected trade union body.
In conditions of financial instability, many employers have a forced need to optimize cash costs, as a result of which one of the solutions is to reduce the number or staff of employees.
Possible errors in the reduction procedure regulated by legal norms can lead to negative consequences for employers. And first of all - to litigation with employees and additional financial costs to the organization. Let's analyze the most pressing issues.
In the Labor Code of the Russian Federation, two terms are mentioned when dismissing employees for layoffs: reduction in the number and staff of employees. What is meant by these concepts?
There is no official explanation of the concepts of "downsizing" and "downsizing" at the legal level. Concerning terms are interpreted differently. Even in jurisprudence.
First point of view. Reduction of staff is the exclusion of the position itself from the staff list (for example, the exclusion of the position of a specialist). Downsizing - a reduction by a certain number of staff units for one position (for example, the staffing table provides for three “specialist” staff units. When the number is reduced, one remains).
Second point of view somewhat different. With a reduction in staff, the number of staff units is reduced or the position itself is excluded (partially, as in the first case), and with a reduction in the number of employees, the total number of employees is reduced without reference to a specific position.
Does the employer have to justify his decision to reduce the number / staff?
According to the Labor Code of the Russian Federation, such an obligation of the employer not provided. Let's look at the rulings of the courts.
In paragraph 2, clause 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (as amended on September 28, 2010) it is said that the employer, in order to effectively economic activity and rational property management independently, under its own responsibility, makes personnel decisions (selection, placement and dismissal of personnel). It can be concluded that the employer does not have to justify decision.
But later, the Supreme Court of the Russian Federation in the Ruling of December 3, 2007 No. 19-В07-34 expressed other position: the employee was fired due to a reduction in staff, with which he did not agree, motivating his point of view by the fact that there was no real reduction in staff, including his position (it was excluded from the staff list, but in fact the same duties were transferred to another employee) . The decision of the court of first instance states that the court is not entitled to enter into a discussion of the advisability of reducing staff and redistributing duties between employees. Having considered the materials of the case, the Supreme Court of the Russian Federation came to the conclusion that the court’s erroneous argument that the court should not check the validity of the employer’s decision to reduce the staff of employees, and sent the case, together with the supervisory appeal and the ruling, to the supervisory court for consideration on the merits. Based on this, we recommend that in the order to reduce the number / staff of employees, justify the decision to reduce.
Which of the laid-off workers can count on the preferential right to remain at work in the event of a reduction in the number or staff of employees?
The preferential right to leave at work, provided for in Art. 179 of the Labor Code of the Russian Federation, it is applied if the number of staff units of one position is reduced (for example, one out of three accountants should be reduced), and if we are talking about the exclusion of all units in one position, then the question of preemptive right is not raised.
However, in the title of Art. 179 of the Labor Code of the Russian Federation, there is a reduction in both the number and staff of employees. When reducing the position as a whole, Art. 179 of the Labor Code of the Russian Federation is applied in the event that there are vacancies suitable for all laid-off employees, and the number of vacancies is less than the number of employees. In this case, vacancies should first be offered to employees who have a preferential right to remain at work.
How to determine an employee with higher labor productivity and qualifications? In practice, the level is taken into account vocational education, work experience, refresher courses, business and personal qualities worker. The employer can independently determine the criteria and evaluate employees, provided that the decisions taken are documented.
Is it possible to lay off an employee who is on parental leave?
First of all, let's look at Art. 261 of the Labor Code of the Russian Federation. Labor law provides additional protection women with children under three years of age: they cannot be fired due to downsizing or downsizing. Even if received written agreement workers, dismissal (in case of going to court) will be declared illegal.
But what about the employer, if he actually no longer needs this position? It may be possible to negotiate with the employee on dismissal by agreement of the parties. Termination of an employment contract on this basis is also allowed with women who are on parental leave. Otherwise, the employee remains "outside the state" until the child grows up.
Also, not only the mother, but also another family member can be on parental leave.
Can this worker be made redundant? In accordance with the norms of Part 4 of Art. 256 of the Labor Code of the Russian Federation for the period of parental leave, the employee retains his/her place of work (position). It is not allowed to dismiss an employee at the initiative of the employer during his stay on vacation. Based on this, we conclude that the reduction of the grandfather, which is located in vacation child care is unacceptable, although he is not included in the list of workers listed in Part 4 of Art. 261 of the Labor Code of the Russian Federation, with which it is impossible to terminate the contract by reducing the number / staff. The conclusion is confirmed by judicial practice.
Is it possible to dismiss an employee for reduction during his sick leave? If an employee falls ill during the redundancy warning period, is the statutory period extended by two months?
The direct answer to the first question is contained in part 6 of Art. 81 of the Labor Code of the Russian Federation: it is not allowed to dismiss an employee at the initiative of the employer (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability. But in practice, sometimes there are difficulties.
But what if the employee is sick when the date of dismissal approaches? If you do not fire him on the day on which the 2-month notice period for dismissal expires, then what to do next? It is necessary to wait until the employee returns to work (albeit later than the date of the planned dismissal), and then make the dismissal under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation.
If the employee falls ill during the notice period for the reduction, then this period is not extended, not shifted (such a procedure is not provided for by the Labor Code of the Russian Federation). The employee leaves after illness and continues to work until the scheduled date of dismissal.
EDITOR'S NOTE
For example, Determination of the Irkutsk Regional Court of November 27, 2014 No. 33-9762/2014.
Is it necessary for a pensioner when reducing average earnings for the period of employment for the third month?
This issue is no longer controversial. For the third month, the benefit is due if the employee, within two weeks after the dismissal, was registered with the employment service as unemployed and was not employed by the time of the expected payment. This benefit applies to the unemployed.
Dictionary
Unemployed- able-bodied citizens who do not have work and earnings, are registered with the employment service in order to search suitable job are looking for work and are ready to start it (clause 1, article 3 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment in the Russian Federation” (as amended on December 22, 2014; hereinafter - Law No. 1032-1) ).
Article 81 of the Labor Code establishes the grounds for dismissal in the form of a reduction in the number or staff of the organization. The difference between downsizing and downsizing does not affect the reason for dismissal. In both cases, the work book is filled with the same entry.
What is downsizing or downsizing and what is the difference?
Each organization has its own membership. Employees are recruited in accordance with the staff, which is documented. For this purpose, the staffing table is published.
Reducing the number of employees - reducing the number of employees of the organization.
Downsizing implies direct changes to the staff through the abolition of posts.
With a reduction in the staff unit, the number may not change. For example, they removed the accountant unit and introduced an economist. The number remained the same, but the staff changed.
Carefully understanding each of the concepts, you can identify , What is the difference between downsizing and downsizing.
When it is impossible to make a dismissal to reduce the number or staff of employees
According to the law, it is impossible to carry out a dismissal due to a reduction in the number or staff:
- pregnant employee;
- a woman who has a child under 3 years of age and takes care of him;
- single parent;
- an employee under the age of 18, without the permission of the labor inspectorate.
Important! Do not reduce citizens who are on sick leave or on vacation. The calculation is made after the actual exit to the place of work.
The procedure for dismissal to reduce staff or headcount
Regardless of whether the dismissal is made to reduce the number of employees or staff, the algorithm of action is the same:
- 90 days before the reduction, the organization informs the employment center in writing about the upcoming procedure. With a single reduction, this is not necessary.
- 60 days before the procedure for reducing the number of employees, inform the dismissed persons about it in the form of a special dismissal. This document specifies the date of reduction and positions to which the employee can be transferred. If he agrees, a transfer order is issued. The refusal of the employee is issued in the form of an act.
- An order is issued to change the staffing table. In it, the dismissed person must put his signature.
- On the day of the reduction, the employee signs the dismissal order, receives a work book and full payment in his hands.
Important! If before the day of reduction at the enterprise there is a vacant position suitable for the dismissed person, he must be informed about it. You should offer him this position.
Reducing the number or staff of employees: what you can count on
With a reduction, a person has the right to claim a severance pay in the amount of the average earnings for two months. If he does not find a job within 60 days, the employer will pay him severance pay for one more month. But, in order to receive it, it is necessary to register with the employment service within two weeks from the moment of reduction.
Pensioners, with a reduction, have the right to early retirement if they have no more than two years left before their well-deserved rest.
Many enterprises are forced for a number of reasons to engage in the optimization of production and personnel. In this regard, most people are worried about the reduction in the number or staff of workers. What is the difference between such procedures, few people understand well enough. This can lead to labor disputes between employers and dismissed personnel.
What is the difference
Private and state enterprises sometimes forced to resort to the dismissal of employees by reduction. It is also often necessary to eliminate staff units. These two procedures have a big difference.
Every organization has its staffing employees. Such a document is officially approved, and according to it, employees are recruited for the enterprise. The difference between downsizing and downsizing lies in the reduction of the employee, and not his position, in other words, the staff unit.
A reduction in the number of working personnel implies the dismissal of an employee due to a large number of working personnel or in connection with excessive financial expenses for payment. However, the position remains on the staff list.
For example, a company has 5 accountants, and management decided to keep only 4 specialists and cut 5 employees.
Another thing is when they reduce the staff unit. Changes are made to the documentation, but the position is not eliminated. The new document will not differ from the previous one by the total number of official points. It is better to consider an example: 3 economists were included in the staffing table, but for certain reasons the organization decided to make changes and leave only 2 economists and introduce 1 more accountant. The total number of employees in the state remained the same, but there were fewer economists by 1 position.
There are certain norms of TK, according to which certain categories are not subject to staff reduction and reduction in number. Can't be fired:
Also, workers who are on vacation or sick during this period, and they have a confirming medical document, cannot fall under the reduction.
The employer must wait for these employees to go to work and only then make a calculation on the last day actually worked.
During the downsizing, the organization grants the preferential right to retain a regular position to certain categories of workers. It includes highly qualified personnel who constantly improve their professional level employees with higher specialized education. This also applies to:
Many enterprises approve the Collective Agreement, which provides for a list of officials, specialists with some advantages over others. By Labor Code In the Russian Federation, pensioners with long work experience who have proven themselves to be highly qualified specialists enjoy preferential benefits. If it is not possible to keep the job, then they are entitled to all the stipulated payments.
Regardless of the reasons for the decrease in the number of workers, the procedure for carrying out all actions is the same. The organization is obliged to notify the employment center in writing 90 days before the start of the reduction. If a single reduction is made, then this is not necessary.
Prior to the start of the reduction of all employees in the state within 60 days, the company informs all persons in the form of a special dismissal. It indicates the exact date of reduction and the position to which the dismissed person can be transferred. With the consent of the employee, an order is issued to transfer him. If he refuses to move to the proposed position, then the refusal is drawn up in the form of an act.
The company should issue an official decree to change the staffing table. In this document, the dismissed employee puts his signature. On the day of reduction, the employee must sign the dismissal order. He receives his work book in his hands and the administration makes a full settlement with him.
In case of occurrence vacancy the dismissed employee is obliged to offer it. The administration should inform him about it. Trade union bodies must be notified of the forthcoming reduction.
All laid-off employees are guaranteed to receive compensation payments and severance pay for the agreed period of employment:
The administration of any organization must coordinate all issues on the reduction and dismissal of its workers with trade union committees, and union leaders are required to ensure that there is no violation of the rights of employees who are planned to be fired.
