Dismissal by layoff of the employer. Supreme Court of the Russian Federation

Tatyana Shirnina, senior lawyer of the Labor Law Department of the Institute of Professional Personnel Officer, explains what mistakes employers most often make when reducing staff, what needs to be taken into account when dismissing different categories of workers, and what guarantees and compensation are provided for those laid off.

Typical mistakes

If we talk about typical mistakes when shortening, then these include:

• absence (non-delivery) of notice of reduction;
• dismissal of an employee earlier than two months' notice period;
• failure to notify the employment authorities and the trade union (if any) within the established time frame;
• failure to offer vacancies, if any.

When it comes to reducing the number of employees, it is a fairly common mistake to fail or incorrectly conduct a pre-emptive right assessment (). For example, employers often lack criteria for assessing labor productivity and qualifications, or these criteria are recognized by the courts as subjective.

Who can't be cut

So, for example, in Moscow, according to the Moscow tripartite agreement for 2016-2018 between the Moscow Government, Moscow associations of trade unions and Moscow associations of employers, criteria for mass dismissal are indicators of the number of dismissed employees of organizations registered in the city of Moscow, with the number of employees from 15 or more people for a certain period of time:

1. dismissal within 30 calendar days of more than 25% of the organization's employees from the total number of employees in the organization;
2. dismissal of employees in connection with the liquidation of an organization of any organizational and legal form;
3. reduction in the number or staff of the organization's employees in the number of:

• 0 or more people within 30 calendar days;
• 200 or more people within 60 calendar days;
• 500 or more people within 90 calendar days.

Other nuances

Basically, all labor disputes are related to the appeal of the reduction procedure, therefore, I recommend creating a commission before starting the procedure, prescribing the reduction procedure step by step and assessing the risks and costs in advance. Pay attention to the reduction of certain categories of workers - minors and union members. In relation to these workers, there are also peculiarities when making reductions.

In addition, I additionally recommend that you make sure that the employee will not be on vacation on the date of dismissal. It is impossible to control the issue of an employee being on sick leave on the date of dismissal, therefore I do not recommend specifying a specific date of dismissal in the notice of redundancy. It is better that the wording is general, for example, “... after two months from the date of delivery of this notice, the employment contract with you will be terminated on the basis provided for in paragraph 2 of Part 1 of Art. 81 of the Labor Code of the Russian Federation ".

Often, employees refuse to sign and take notice of layoffs altogether; in this case, I recommend that this fact be confirmed in the presence of at least two witnesses from among the employees.

When an organization goes out of business or needs to downsize for a compelling reason, the employer can, on its own initiative, fire the employee.

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How to properly issue a layoff in 2019? When laying off an employee in order to reduce the number of employees, it is necessary to comply with the applicable rules and regulations.

You need to properly arrange the process and pay all the required compensation. How is the layoff procedure carried out in case of downsizing or staff reduction in 2019?

General points

First of all, the employer needs to know that illegal dismissal can cause very negative consequences.

An employee can file a lawsuit in court within a month after dismissal in order to appeal against the employer's decision.

The following may be claimed as a claim:

• reinstatement in office;
• changing the wording of the dismissal entry;
• compensation for forced absenteeism.

Satisfaction of the claim depends on the existence of the evidence base presented by the parties.

So the court will not be able to reinstate the plaintiff if he does not fall under the category of employees not subject to dismissal or when carrying out a procedure under the law.

The employer has the right to argue for the absence of violations on his part. Confirmation of the legality of the employee's dismissal is:

How to properly implement the staff reduction procedure in 2019?

What it is

Reduction of personnel implies a decrease in the number of posts or the number of personnel.

For example, an organization employs several people in the same position, after the reduction, one or two employees remain.

From the point of view of logic, everything is simple. The employer decided that it was necessary to reduce the number of employees and laid off unnecessary employees.

But from the perspective of labor law, the situation is complicated by the need to comply with certain rules. Staffing refers to the total number of positions that exist in the organization.

Accordingly, the reduction in staffing means that some positions are excluded from the staffing table.

And since the organization does not have a position appropriate for the employee, then the extra employee can be fired.

But among other things, there are nuances regarding the dismissal of certain categories of citizens. Thus, some persons, due to their status, cannot be dismissed otherwise than.

Therefore, in case of staff reduction, it is necessary to offer such workers other vacancies. Dismissal is allowed only in the event of an absolute absence of suitable positions or when the employee refuses to transfer.

The general reduction scheme looks like this:

1. The employee is notified of the upcoming layoff.
2. Management issues a dismissal order.
3. Dismissal is carried out with full accountability.

The main reasons for the need

In order to legally implement the downsizing, it is necessary to have sufficient justification to convince the labor commission. The employer must prove that he has no choice but to liquidate the position.

The law provides for the following reasons for dismissal, at the initiative of the employer in connection with the layoff:

• termination of the organization's activities and its complete liquidation;
• reduction in the number of employees or the number of positions due to certain circumstances.

It is worth noting that many enterprises, when downsizing, prefer that employees leave their jobs of their own free will.

This is explained by the fact that in this case there is no need to pay any severance pay. Upon dismissal due to layoffs, the following must be paid:

• salary for days actually worked;
• compensation for unused;
• average salary for the period of employment.

Employee rights

When implementing a layoff associated with a reduction in staff, you need to be aware of some peculiarities.

In particular, we are talking about the rights of workers. For example:

Important! The employee must receive a notice of layoff no later than two months before the layoff. During this time, the employee can find another job and quit early.

Who can't be fired

When an employee hired for seasonal work is laid off, he must be notified no later than 7 days before the date of dismissal.

Procedure and terms of payments

In the event of downsizing, the payment deadlines must be met. But at the same time, there is no need to pay all the due amounts on one day.

On the day of dismissal, the laid-off employee must receive:

• accrued wages for all days worked;
• compensation for unused vacation;
• severance pay for one month.

A month after the layoff, the dismissed employee is not entitled to any payments. But after the second month, the laid-off employee can receive compensation in the form of monthly payment.

For this, the employee must provide the former employer without a new employment record.

For your information! Compensation for the absence of another job after the layoff is possible only if the dismissed employee is registered with the Employment Center and received official status.

Moreover, you should contact the Central Center within two weeks after the reduction. In some cases, the employer must compensate for the third month after the dismissal.

Video: staff reduction procedure - how it looks and its nuances

The basis is a document issued by the Employment Center on the impossibility of employment. Compensation for the second and third months is paid within the terms agreed with the recipient.

Since this payment is not a salary, it is not necessary to pay it on the day that employees are paid.

What nuances may arise

When planning a staff reduction, an employer should be aware of the intricacies of dismissal. The nuances relate to the moments when an employee cannot be fired without the consent of certain structures, or when compensation for unemployment is paid even after the expiration of the standard two-month period.

As a rule, the features concern the least protected categories of the population - pensioners and minors.

These categories of workers are primarily considered by the employer when it is necessary to reduce the staff or eliminate certain positions, but the state strictly protects the interests of these persons.

For retirees

According to the labor law, workers who continue to work in retirement are laid off in a standard manner and on generally accepted grounds. There are no differences in the dismissal of a pensioner as such.

But at the same time, a dismissed pensioner, in case of contacting the Employment Center and who has not found a new job, has the right to demand compensation for lack of work for the third month after dismissal.

In addition, in some cases, a pensioner can receive up to six months. The decision on the appointment of payments is made by the court.

At the same time, various circumstances are assessed, such as the level of income of a pensioner, the importance of continuing to work, etc.

For minors

With regard to minors, labor legislation contains a lot of nuances. This is the procedure for employment, and permissible types of activities, and the level of responsibility.

That is, it can be quite difficult to find a job for a minor citizen. But it is even more difficult to fire such an employee.

First of all, it should be noted that age in this case cannot be considered a minus in identifying the advantages of individual workers.

Among other things, the law expressly prohibits the dismissal of a minor citizen at the initiative of the employer, even with a layoff. You will need to obtain the consent of the State Labor Inspectorate for persons under 18 years of age.

The inspectorate will need to provide evidence that the layoff is necessary and it is not possible to keep the job of the downsized employee.

You also need to prove that other vacancies cannot be offered due to the age of the employee (increased workload, work at night, etc.).

If there was a question about the layoff, the employer must send a notification to the employees at least two months before the planned dismissal.

However, many already at the stage of talking about the coming changes in the company begin to look for a new job. And they find it.

But it often happens that the vacancy suits, the decision to hire is made, but the employer is already demanding to start performing official duties.

There is only one way out - to quit your old job as soon as possible.

Rather, to quit is still not quite the word so as not to be confused with a simple dismissal of one's own free will. Therefore, it is better to use the term "early termination of an employment contract".

This can be challenging. Yes, on the one hand there is Federal Law No. 197-FZ. On the other hand, the employer's consent not to wait for the designated two months is precisely what is voluntary consent, but not an obligation. And here is the most important thing - for both sides! - do not break spears.

Benefits and guarantees

First, layoff does not always mean losing your job altogether.... If the company's management has decided to reorganize, two departments, say, merge into one or one or another position is no longer needed, then the downsized one is offered other options that are similar in functionality. If there are simply none, then everything that is possible.

Secondly, of course, money:

• payment for all hours worked;
• compensation for unused vacations;
• severance pay;
• additional allowance - in accordance with those working days that remain until the reduction;
• the average earnings during the two months that the employee joined the labor exchange - until he finds a job.

What is the right way to quit?

Actually, the very process of dismissal to reduce staff early on the initiative of the employee will look like, as in the standard case:

• the head of the company issues an order on the beginning of staff reduction, sends it to the personnel department;
• personnel officers are engaged in drawing up lists of applicants for redundancy (Art. 179 of the Labor Code);
• those who are “lucky” to get on these lists receive a notice of layoffs - this must happen no later than two months before the date of dismissal;
• if there are those who do not agree to sign the notification (and they have the right to do so), then this does not change the essence of the matter, but nevertheless, an appropriate act must be drawn up. Later, this paper will be included in the employee's personal file;
• a citizen who wants to quit earlier writes an application in the appropriate form and submits it to the office, where it must be registered;
• the head of the firm makes a decision and imposes a resolution;
• an order is issued;
• the employee is settled on the day of his departure, an entry is made in the work book.

Application submission

In case of early dismissal in case of reduction of staff at the initiative of the employee, as in any other voluntary leave, will have to write a statement... You just need to do it right.

Many citizens do not know how it will differ in this particular case - and the leaders, of course, are not interested in prompting - and they write the usual petition.

And it turns out in the end a standard one, that is, the usual own desire - no benefits, no additional payments, and when the unlucky citizen realizes it, it’s too late.

So, in our case, the paper should contain:

Order

If the head of the company does not object to the early layoff of the employee before the expiry of the warning period, then he issues an appropriate order. The document is drawn up in the first person and contains:

• full name of the company;
• demand to dismiss (for example, Ivanov Ivan Petrovich, senior manager of the department for work with legal entities) on his own initiative;
• date of dismissal;
• a settlement request addressed to the accounting department;
• date, signatures, company seal.

An order of dismissal in case of a reduction in staff without working two months is presented to the dismissed person under a personal signature, and then recorded in the order log.

Truth, it's better to play it safe - in order to avoid misunderstandings... To do this, the employer and the outgoing staff need to draw up an appropriate agreement - in duplicate, one for the hands of each side. It should definitely describe what kind of payments this citizen claims and how and when he will receive them.

Now the leaving employee can safely go to the accounting department and receive all the money due to him, without fear that he will be blamed for his own desire.

How should you write down in the work book?

A corresponding note is entered into the work book of a citizen under the date that was listed in the order of dismissal.

Does the employer have the right not to agree to early redundancy at the initiative of the employee?

What if the employer does not want to leave all guarantees to the employee and let him go without work when the staff is cut?

Unfortunately, the law in this case is on the employer's side - he may agree to such a step, or he may not agree... However, no one can ever restrain a person who wishes to leave the company of his own free will (Article 77 of the Labor Code).

And it turns out that there are two ways out: do not resist the boss's refusal and work out the time set before the appointed dismissal, or write a letter of resignation with reference to the notorious seventy-seventh article. What, of course, means automatic deprivation of all additional benefits and payments- except for salaries and compensation for vacations, of course. The boss will even happily sign this statement.

Worse in this case is not even the very fact of refusal, but another moment. It is clear that not a single entrepreneur is interested in pouring money over the personnel with whom he is parting.

That's why it is better to ask the specialists in advance how you can better arrange your early termination of the employment contract and then go notify the boss - first verbally.

In general, you need to have good relations with your bosses and this moment is a very good illustration of that. Because if the merchant is not interested in dismissing you as in the standard layoff procedure, then anything can be used so that you write a statement "on your own"- misleading, outright refusal, or even intimidation.

But even in this case, you should not give in. In theory, you can then explain to the court that you were forced to write a statement of your own free will. In practice, it is almost never possible to prove this.

If the boss agreed to fire, but does not give out the due money, you need to defend your rights... To do this, you can contact the labor inspectorate, the prosecutor's office or the court. In the latter case, it is necessary to enlist the support of an experienced lawyer - this will help to avoid "pitfalls" and other difficulties invisible to the eye of the layman.

The claim is filed with the district court of general jurisdiction in the number of copies based on the number of participants in the process and necessarily contains:

• full name of the court area;
• date and place of compilation;
• the essence of the problem;
• reasons that prompted to quit early;
• what confirms that the boss's refusal is just wrong;
• references to legislation;
• demanding what the applicant wants from the court;
• list of attached papers;
• signatures.

If a citizen convinces the court that his rights have been violated, the former bosses will have to pay the employee not only the money due upon dismissal, but also compensate for moral and (or) material damage, legal costs.

So it turns out that the main thing in dismissal for early redundancy at the initiative of the employee is not to rush... Especially when applying. And, of course, it will be better for both sides if they respect each other's rights and needs and decide everything in an amicable way. This will allow you to avoid complaints, and showdowns in court, and unnecessary time, financial, and most importantly - nervous costs.

One of the types of termination of an employment contract at the initiative of the employer is dismissal due to staff reduction. The procedure provides significant social guarantees to the employee. Downsizing requires a clear workflow from the employer.

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Rules

In the legislation, the possibility of dismissal to reduce the number of employees is established in the Labor Code of the Russian Federation.

The reason for the decrease in the number may be:

• enterprise restructuring;
• economic difficulties associated with macroeconomic trends.

Downsizing is typical for employers who comply with labor law requirements for employees.

In other situations, managers or owners of companies force employees to resign of their own free will or by agreement of the parties. The articles make it impossible for the employee to receive social guarantees and challenge the employer's actions in court.

A different picture takes place when the staff is downsized:

• the employee has the right to receive average earnings for 2 months;
• when registering at an employment center, a person receives payment for the 3rd month from the date of notification;
• being registered at an employment center allows you to access databases on vacancies and receive material payments for the entire period of being on the lists of unemployed;
• a person gets the opportunity to increase their work experience. The period of being registered as an unemployed is included in the total length of service taken into account when calculating certificates of incapacity for work.

The number of employees of the company is reflected in the staffing table. The document is approved by the head of the company when drafting, making changes.

The schedule specifies the positions:

• with designated persons;
• vacant at the time of state creation or adjustment.

Downsizing activities begin with a notification to the enterprise's trade union body. If there is no education in the company, a general meeting is held to alert employees.

For competent compliance with the requirements of the law, a lawyer is involved in the presence of an official in the organization or individual entrepreneur.

Prior to the downsizing procedure, a commission is appointed from among the employees of the enterprise. The number of members must be at least 3.

The chairman of the commission is appointed responsible for document flow. If a trade union body is organized at the enterprise, its representative is included in the commission.

The company issues orders approved by the head:

1. On the approval of the composition of the commission with an indication of the task.
2. On the reduction of staff.
3. On the development and publication of a new staffing table.

Events are held regardless of the number of redundant posts.

Dismissal procedure

Reduction of staff and dismissal of employees are carried out in compliance with the conditions:

• legally competent paperwork in accordance with the requirements of labor and civil legislation;
• revising and approving a new staffing table;
• upon dismissal of employees, the principle of the pre-emptive right to remain in office is respected;
• preliminary notification of the dismissed person;
• payments of amounts due;
• the consent of the trade union body, if available at the enterprise.

After the approval of the new modified staffing table, the commission proceeds to determine the employees who fall under the reduction. When compiling the circle of persons subject to dismissal, the requirements of the Labor Code of the Russian Federation are taken into account.

Persons with high qualifications with indicators of labor productivity have priority over other employees. As evidence, diplomas, documents on advanced training, entries in the work book are accepted.

The rest of the employees have advantages if the conditions are met:

1. There are two or more disabled persons in the family. Dependents include minor children and persons who do not have the physical ability to find a job.
2. Absence of other family members employed and earning money.
3. Those who received an industrial injury from the employer during the period of performance of their duties.
4. WWII veterans and invalids, persons, combatants and citizens equated to them.
5. Employees who improve their profile qualifications on the job, directed by the management and issued by order.

One of the important documents of the enterprise that provides social guarantees is the collective agreement.

If the document establishes an additional list of persons who have the pre-emptive right to leave in case of reduction, the provisions are taken into account when determining the persons to be dismissed.

The provisions of the collective agreement must not contradict applicable labor laws.

Persons are not subject to dismissal due to staff reduction:

1. Women during pregnancy and with children under 3 years of age.
2. Single mothers whose children have not reached the age of 14 or who have disabled children under the age of 18.
3. Another parent, the only breadwinner, whose family has 3 children, one of whom has not reached the age of 3.
4. Employees under the age of 18.

The list of persons is indicated in the Labor Code of the Russian Federation. The main condition for the dismissal of persons on staff redundancy is prior notification of employees. The form is drawn up in any form.

Employee notification requirements:

• the document is submitted in writing. The employee must personally familiarize himself with the notification and put the date, signature with a transcript of the name and position. In case of refusal to sign on the document, a record of the notification is left by the members of the commission in the amount of 2 people;
• the notification is presented to the employee no later than 2 months prior to dismissal. The period is provided for the employee to search for a new job. Despite the employee's stay in the workplace, he cannot be prevented from being absent for a good reason.

If the employee is on vacation for various reasons or has a disability confirmed by a sick leave, the notification (by mail or otherwise) is not served.

If there are other vacancies and subject to the qualifications of the employee, the employer is obliged to offer him a new place of employment.

The offer is made in writing. On the document, the employee must leave comments on consent or refusal with confirmation of the record with a signature with a transcript and the date of familiarization.

What documents are needed

The staff reduction procedure requires a significant number of documents, the absence of any of which makes it possible to appeal the dismissal.

It is necessary to compose:

• notification of the trade union body, if available at the enterprise;
• orders to reduce staff, create a commission;
• reduced staffing, approved by order;
• employee notifications;
• act - a proposal to transfer to other positions available in the state;
• dismissal orders.

The company is obliged to send a notification letter to the employment center about the planned downsizing activities. The information must reach the institution 3 months before the dismissal of workers.

Employee rights

Upon dismissal due to staff reduction, an employee has the right to:

• read the 2 months notice of reduction;
• receive payment for the period in the amount of average earnings and other compensations established by the collective agreement;
• use a 2-month period in order to find a new place of employment;
• resign before the deadline specified in the notice. The basis for early termination of the contract is a written statement of the employee. Dismissal is made with the consent of the employer and without additional work;
• receive compensation for the leave that was prescribed during the period of performance of labor duties and was not previously used. Payments are made instead of the main, additional leave and those types that are approved by the collective agreement.

The procedure for downsizing and dismissing employees may be irregular. Individuals have the opportunity to challenge the decision of the commission and the dismissal procedure.

Objections are often made at the stage of determining the circle of persons to be reduced in the presence of workers with equal rights.

If any controversial issues arise, employees can contact the labor commission. Failure to reach an agreement between the parties in the reduction of staff is contested in court proceedings by filing a claim.

How to make an entry in the labor

The need to reduce the number of employees arises when optimizing production, falling volumes, and reducing economic activity. When the number of jobs is reduced, some of the workers are dismissed on the basis of clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, changes are made to the staffing table.

The downsizing procedure is socially and psychologically complex for employees, therefore the legislation strictly regulated the procedure for dismissal to reduce staff or number. The basic requirements are spelled out in Art. 82,179,180,373 of the Labor Code of the Russian Federation.

Can't get fired

Not all employees can be laid off on staff reductions. An entire department or workshop can be cut. There are employees whose right to preferential stay at work is guaranteed by law.

Let's take a look at who can't be laid off due to layoffs:

1. Employees undergoing treatment. Temporary disability must be documented.
2. Employees on vacation: maternity, regular, study, without pay.
3. Pregnant women.
4. Single parents whose children have not reached the age of 14 and 18, if the child has a disabled status.
5. Mothers raising children under 3 years old.
6. Work collective representatives.

Benefits of some workers when downsizing

Situations arise during redundancies when one of the identical positions is excluded. The legislation provides for rules that make it easier to choose an employer. Preemptive retirement from work in accordance with Art. 179 of the Labor Code of the Russian Federation have:

1. Employees with two or more minor children.
2. The only breadwinners in the family.
3. Employees with an occupational disease or injury sustained by this organization.
4. Employee-trained employees.
5. Military invalids.
6. Persons affected by radiation sickness.

Stages of layoffs with job cuts

Consider how the layoff occurs due to staff reduction. Step-by-step instructions for 2019 provide:

Additional Information

The final stage of the downsizing procedure is the issuance of orders for the dismissal of employees. Orders are usually issued according to the unified form No. T-8. In the “ground” column, you must specify a link to the order to carry out actions to reduce the number of employees, a notice of redundancy, if any, to the details of the document in which the employee wrote consent to terminate the employment relationship before the expiration of the warning period. Employees need to familiarize themselves with this order and leave their signature there.

1. Downsizing cannot be done arbitrarily. An order is required to amend the staffing table with an indication of the positions that will be excluded.
2. The interested parties are then notified: the trade union organization, if any. The notice is sent at least two months before the layoffs.
3. Also, the Employment Center is notified at least two months before the reduction. A list of persons is sent with an indication of their positions and professions. In case of a massive reduction, it is necessary to notify the CPN 3 months in advance.
4. Employees are also notified two months in advance. The notification must be in writing, employees familiarize themselves with it against signature. Dismissal before the expiration of the notice of redundancy is possible upon a written request from the employee. Compensation is calculated for the period remaining until the expiration of the two-month period.
5. The presence of vacancies in the organization obliges the employer to offer these positions to the laid-off workers. Vacancies may appear within two months from the date of notification, these vacancies must also be offered to employees who have been laid off. Vacancies must match the qualifications and health status of employees, but the entire list is offered. The procedure is drawn up in writing, if the employee refuses from the proposed vacancy, a corresponding entry is made on the proposal form and a signature. If the employee agrees to the proposed vacancy, a transfer order is issued.
6. After the expiration of the period of two months, an order is issued to terminate the employment contract, with which it is necessary to familiarize the dismissed employees.
7. The last day of work is the day of dismissal, the employee receives a work book, calculation and certificates of average earnings. At the request of the employee, the employer is obliged to issue other documents related to his work. The basis for dismissal in the work book is entered into 81 articles of the Labor Code of the Russian Federation - dismissal due to staff reduction, paragraph 2, part 1.

Details about layoffs in case of downsizing in this video

Downsizing payments

The layoff of an employee involves the payment of compensation in the amount of the employee's average monthly earnings. If an employee registered with the CPA within two weeks after the layoff is not employed within three months, then payments are made for each month of unemployment. Compensation paid upon termination of employment is considered payment for the first month. Also, on the day of dismissal, wages and vacation pay are paid for unused days of the next vacation.

It is important to know that any delay in payments is a violation of the law! If the payment procedure specified in the legislation has been violated, any employee can apply to the court, as well as to the prosecutor's office. The term for contacting these bodies is three months from the date of dismissal.

In case of violation of the order of dismissal or illegal dismissal, the employee has the right to apply to the State Labor Inspectorate and the court. The State Labor Inspectorate will check compliance with the law when reducing workers, the results of the check will be good evidence in court. The court reinstates the employee in case of illegal redundancy and obliges the employer to pay compensation in the amount of average earnings for the period when the employee was forced not to work.

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