How an employee is laid off. The procedure for dismissing employees during staff reductions

The reduction can be carried out by reducing the number of employees or reducing staff positions. This procedure is carried out to optimize the operation of the enterprise. The leader has two options:

Remove unnecessary positions from the staffing table.
Reduce the number of employees occupying positions.

The general principle looks like this:

the manager makes a decision;
the order must be issued two months before the layoffs; if they are massive, the period increases to three months;
A new staffing table is being prepared and approved. Important. It is impossible to dismiss due to reduction without excluding positions from the regular staff and approving its amended version;
the employment service is notified about the upcoming event (part 2 of article 25 of Law No. 1032-1 of 04/19/91);
priorities are set when choosing employees who will remain working.

The Labor Code of the Russian Federation establishes a list of persons who cannot be dismissed due to reduction, and persons who fall under the procedure in the first place (Article 279, Article 161).

Labor Code of the Russian Federation, Article 279. Guarantees to the head of the organization in case of termination of the employment contract

In the event of termination of an employment contract with the head of an organization in accordance with paragraph 2 of Article 278 of this Code, in the absence of guilty actions (inaction) of the head, he is paid compensation in the amount determined by the employment contract, but not less than three times the “average monthly earnings”, with the exception of cases provided for this Code.

Labor Code of the Russian Federation, Article 161. Development and approval of standard labor standards

For homogeneous work, standard (intersectoral, sectoral, professional and other) labor standards can be developed and established. Standard labor standards are developed and approved in the manner established by the federal executive body authorized by the Government of the Russian Federation.

The following categories will be dismissed first:

employees - pensioners;
employees who do not have much seniority or work experience;
employees who have poor performance indicators receive frequent comments.

minors;
pregnant women;
women on maternity leave;
women with children under three years of age;
single parents with a dependent child under 14 years of age;
people who have a disabled child.

Important. A maternity position can be reduced only after the main employee returns to work (with the exception of complete liquidation of the enterprise) (Article 256 of the Labor Code of the Russian Federation).

After selecting the persons who will be laid off, they must be notified of this in writing against signature.

possibility of filling alternative positions. When there are vacant positions in the company, the boss must offer them to the dismissed persons;
order to terminate the employment contract, its registration. Important. An employer cannot fire an employee during vacation or sick leave (Article 81 of the Labor Code of the Russian Federation);
final payment of employees.

On the day of dismissal, employees are paid settlement amounts and all compensation required by law.

A work book with the corresponding entry and other certificates are issued at the request of the dismissed person.

Reference. When people are threatened with layoffs, they should not immediately quit and rush to look for a new job. Upon dismissal in this way, the employee is entitled to fairly substantial payments.

Therefore, you should wait for this moment, and only then look for a new place.

Responsibilities of the employer when laying off an employee

The manager does not have the right to fire employees just like that. All norms and requirements of the Labor Code of the Russian Federation must be observed. So, what must an employer provide when laying off workers?

Employment

If the company does not completely cease to exist, then the employee must be offered any other vacant position.

Upon dismissal due to staff reduction, the employer is obliged within two months, if a vacancy becomes available, notify about this laid-off employee.

Final settlement

In case of layoff, the employer is obliged on the day of dismissal issue all payments due(Article 140 of the Labor Code of the Russian Federation):

full payment upon dismissal (including compensation for unused vacation);
severance pay (the amount is the average monthly salary);
a person receives an average salary within two months after dismissal, and when submitting an application to the employment service - three months (with the exception of employment during this period);
issuance of required documents.

Labor Code of the Russian Federation, Article 140. Payment terms upon dismissal

Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed.

If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.

In the event of a dispute about the amount of amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article.

On the day of dismissal when laying off an employee, the employer is obliged give the completed work book.

The organization is required to issue other certificates of employment on the basis of a written application.

Responsibility for failure to comply

If a manager violates the rights of employees when reducing numbers or staff, he will be brought to administrative, disciplinary, and in some cases, criminal liability (Article 419 of the Labor Code of the Russian Federation).

Labor Code of the Russian Federation, Article 419. Types of liability for violation of labor legislation and other acts containing labor law norms

Persons guilty of violating labor legislation and other acts containing labor law norms are brought to disciplinary and “material” liability in the manner established by this Code and other federal laws, and are also brought to “civil”, “administrative” and “ criminal liability in the manner established by federal laws.

All actions of the manager must be reflected in the documentation in accordance with the law, and employees are notified against signature of the upcoming layoff.

If this does not happen, a person can demand compliance with his rights in court. The law in these cases is always on the side of the employees. The employer is obliged to reinstate the citizen in his position, as well as pay him for lost profits and moral damages. (Articles 234, 237 of the Labor Code of the Russian Federation).

Labor Code of the Russian Federation, Article 234. The employer’s obligation to compensate the employee for material damage caused as a result of illegal deprivation of his opportunity to work

The employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if earnings are not received as a result of:

illegal removal of an employee from work, his dismissal or transfer to another job;
the employer’s refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee to his previous job;
delay by the employer in issuing a work book to an employee, or entering into the work book an incorrect or non-compliant wording of the reason for the employee’s dismissal.

Labor Code of the Russian Federation, Article 237. Compensation for moral damage caused to an employee

Moral damage caused to an employee by unlawful actions or inaction of the employer is compensated to the employee in cash in amounts determined by agreement of the parties to the employment contract.

In the event of a dispute, the fact of causing moral damage to the employee and the amount of compensation for it are determined by the court, regardless of the property damage subject to compensation.

In addition, a negligent employer will be subject to an administrative fine of 30 to 50 thousand rubles for legal entities, up to 5 thousand for individuals and officials, and if the violation is not committed for the first time, then criminal prosecution is possible (Article 5.27 of the Code of Administrative Offenses) .

Delay or refusal to pay due compensation it also threatens the employer with a large fine and suspension of the enterprise’s activities.

The organization will be obliged to pay employees a settlement with interest for each day of delay (Article 236 of the Labor Code of the Russian Federation).

Moreover, for long-term non-payment of wages and other mandatory benefits and compensations (more than two months) criminal liability is provided (Article 145.1 of the Criminal Code of the Russian Federation).

Labor Code of the Russian Federation, Article 236. Financial liability of the employer for delay in payment of wages and other payments due to the employee

If the employer violates the established “deadline” for the payment of wages, vacation pay, dismissal payments and (or) other payments due to the employee, the employer is obliged to pay them with interest (monetary compensation) in the amount of not less than one hundred and fiftieth of the current amount at that time key rate of the Central Bank of the Russian Federation from amounts not paid on time for each day of delay starting from the next day after the established payment deadline until the day of actual settlement inclusive.

In case of incomplete payment of wages and (or) other payments due to the employee on time, the amount of interest (monetary compensation) is calculated from the amounts actually not paid on time.

The amount of monetary compensation paid to an employee may be increased by a collective agreement, local regulation or employment contract. The obligation to pay the specified monetary compensation arises regardless of the employer’s fault.

Important. If an employee believes that the employer has violated his rights, he should file a complaint with the following authorities:

trade union (if there is one);
labor inspection (located at the employment services);

Filing a lawsuit is the last resort As a rule, if disagreements arise with the employer, all disputes are resolved with the involvement of trade unions and the department for the protection of workers' rights.

It is better to comply with all obligations of the employer when reducing staff according to current legislation. Violation of employee rights can result in serious trouble and financial losses. Judicial practice shows that in such situations, authorities always take the side of workers.

Any employer strives to optimize the technological process, increasing the efficiency of production activities at minimal costs, so that the enterprise is profitable and profitable.

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When reorganizing the production process, there is a need to introduce amendments to the organization of work. In the current situation, there is a high probability of carrying out a staffing reduction procedure, which entails the dismissal of a certain number of employees.

How are they enshrined in law?

Intra-organizational changes are of a dual nature: on the one hand, the costs associated with maintaining the workforce are reduced, on the other hand, the productivity of workers increases.

Reorganization measures may lead to an increase in prices for goods or services, a decline in demand for them due to increased prices.

The dismissal of employees due to staff reduction is regulated by the Labor Code. In accordance with her instructions, the dismissal of an employee is carried out on the basis of an order.

It indicates the basis and date of dismissal. The employer compiles lists of positions subject to exclusion from the staffing table.

He issues an order to carry out the procedure for reducing and amending the staffing table on the basis of the specified list in accordance with the Labor Code of the Russian Federation.

When carrying out a reduction in accordance with the requirements of labor law, the employer has certain obligations to the employee.

He must:

in accordance with the provisions of the Labor Code, offer the employee another vacant position corresponding to the employee’s specialty and his state of health;
notify the employee of the reduction in staff in accordance with the requirements of Article 180 of the Labor Code in advance, namely two months. Moreover, familiarization must be carried out against signature, for which he draws up a special document - a notification, which is presented to the employee for review;
coordinate with the trade union committee your actions regarding the procedure for reducing staffing, submit for consideration a list of employees subject to dismissal;
Notifying the employment center about organizational measures being taken at the enterprise, as a result of which a certain number of workers are subject to dismissal. The message must be sent two months before the start of the redundancy procedure. It indicates the personal data of dismissed employees, their profession, specialty, qualifications, position held, and remuneration system.

These mainly include workers who:

have higher qualifications, whose labor productivity under equal production conditions is higher compared to the rest of the workers;
have two or more disabled persons dependent on them;
are the only breadwinners in the family;
received any type of occupational disease, injury or injury while performing work duties at this enterprise;
improve their skills in the area of the enterprise.

If an employee cannot find a job within two months, the employer pays him benefits. But the employee must register with the employment center within one month following the dismissal.

At the request of the center, he may be paid an allowance for the third month of his stay without work. The employee must present the employer with a work record book, which confirms the lack of employment.

In addition to this, he submits a certificate stating that he is temporarily unemployed, obtained from the employment center.

What guarantees are required when making redundancies?

Issues of making payments due to an employee dismissed due to staff reduction, their amount are regulated by Chapter 27 of the Labor Code. It provides explanations on the guarantees and types of compensation that employees are entitled to.

The employer makes payments on the last working day. Along with them, the employee is given a work book, prepared accordingly.

The employer must, if the dismissal is carried out on the basis of staff reduction:

pay the employee severance pay in accordance with the requirements of Article 81 in the amount of average monthly earnings;
maintain the employee's average monthly salary during the period of his employment in accordance with the provisions of Article 178. As a rule, the employer makes payments for the two months following dismissal.

The employer, by paying severance pay, compensates the employee for the early termination of the employment contract concluded with him. It must stipulate the conditions for making severance pay payments and its amount.

If the employment contract does not contain the specified clauses, then the payment is made according to the general rules provided for in such situations by labor law.

When an employee is dismissed due to staff reduction, in accordance with labor law standards, the employee is paid:

wages for hours worked;
compensation for unused vacation;
severance pay in the amount of the average monthly salary. If the employee was engaged in seasonal work, then he is paid a benefit in the amount of two weeks of work.

Average monthly earnings are calculated taking into account accrued wages, including the length of time worked. In addition, the employer pays a living allowance for two months.

Who can't be laid off?

Any employee must have information about his rights so that if the employer’s actions are unlawful, he can defend his point of view.

In addition to employees who have a preferential right, certain rights are vested in labor law standards for employees who:

are undergoing treatment due to temporary disability;
are on labor leave provided by the enterprise every year;
have not reached adulthood. To dismiss them, the employer must obtain the consent of the state labor inspectorate.

The employer is deprived of the opportunity to dismiss female employees in accordance with the Labor Code. These include women who:

are pregnant;
are on maternity leave to care for a minor child;
have children under three years of age;
recognized as a single mother raising children under 14 years of age and a disabled minor child.

Article 261 of the Labor Code provides for certain cases that deprive an employer of the opportunity to dismiss persons from work.

These include workers who raise orphans if they have not reached the full age of 14 and persons supporting a disabled minor child if he has lost his parents or one of them.

What to do if you were laid off illegally

Labor law regulations provide reliable protection of employee rights, regardless of the legal form of the employer.

As a rule, the employer bears administrative responsibility for offenses committed against employees. Usually it consists of imposing a fine, the amount of which depends on the degree of guilt of the employer.

If the dismissal procedure due to staff reduction is violated, the employee can file a complaint with the state labor inspectorate. She is obliged to understand the current situation, which is associated with the dismissal of an employee.

He can also appeal the employer's decision to dismiss him from work in court. The employee must file a claim within one month after he was laid off.

In most cases, if the employer acts unlawfully, the judicial authority supports the employee by deciding to reinstate him at work.

In addition, he may oblige the employer to pay compensation to the employee for moral damages. The employer makes payment for the employee’s forced days of absence if he was dismissed from work under duress.

And in conclusion, it should be noted that in the labor market and labor recruitment there is an intensive increase in unemployment associated with a reduction in the workforce at domestic enterprises. These phenomena are directly related to the devaluation of the national currency due to the economic crisis.

When enterprises face an internal economic crisis, there is a need to lay off workers to reduce the number of employees within the organization. This procedure is provided for by current legislation and must be carried out in compliance with its rules and regulations.

Concept of downsizing

The number of employees of an enterprise is a list of employees working in this organization. Staff reduction means a change in the direction of reducing the actual number of employees.

The number of employees is the total number of all positions provided in a given organization. Thus, reduction means the removal of some positions or their quantitative composition from the staffing table.

Dismissal due to staff reduction does not always imply a reduction in the total number of employees of the enterprise. Sometimes there is a redistribution of the number of full-time employees. For example, if instead of three accountants it is planned to introduce one accountant position and two additional positions - drivers - then the total number will not change, but the staff will be redistributed.

Dismissal due to staff reduction, sample procedure

The process of making reductions in production should be carried out in a strictly agreed upon manner. There are legal rules according to which layoffs are made:

Drawing up and publication of an order on changes made to the staffing structure and the numerical reduction of employees of the enterprise. This document contains a list of positions that are subject to dismissal or reduction in staffing, indicating the effective date and termination of their employment contracts. For this purpose, a special commission is created, whose responsibilities include resolving all issues related to notifying workers of their dismissal, as well as notifying the employment center and trade unions.
A notice of dismissal due to staff reduction is drawn up in a form containing all the necessary information about the ongoing abolition of the position. It should be sent for familiarization to employees against signature. This applies to those employees who are on the redundancy list. Such an event must be held no later than 2 months before the date of termination of employment contracts with them. The delivery of such notices must be carried out in the presence of several representatives of the employer, so that they can act as witnesses if the employee refuses to familiarize himself or does not agree with the notice. Such facts must be recorded by drawing up special acts.
Dismissal due to reduction of an individual employee is carried out with mandatory notification. In this case, the employer must offer the employee all vacancies that correspond to his qualifications within the administrative-territorial area in which the organization is located. The employer is also obliged to provide a choice of positions that this employee can occupy within the organization; he will be transferred to one of them if he agrees. If the company does not carry out such actions, then the dismissal of the employee will be considered illegal and can be appealed in court. If the employee voluntarily refuses the vacancies offered to him, then the employer must draw up a written act on this fact, which during the proceedings can act as evidence in court.
Along with notifying the employee, within 2 months before it comes into force, the employer is also obliged to notify the Employment Center. For this organization, it is necessary to provide documents for a period of 3 months before the planned reduction, if it is massive. The notification submitted to the Employment Center must indicate a complete list of positions subject to reduction and the number of employees being laid off, as well as qualification requirements and the level of their remuneration. If an enterprise includes in its structure several divisions located in different localities, it is necessary to notify each of the Employment Centers. In the absence of notification to the Central Employer's Office about the employee's layoff, the order will be considered invalid and illegal.
Trade union organizations must be notified within the same time frame as the Labor Center of the planned reduction. This process is carried out no later than 3 months in advance. In the absence of notification of the trade union by the employer, such actions will be considered illegal.
Dismissal due to reduction is made after 2 months from the date of notification to the employee. A dismissal order is issued, and all the necessary documents are drawn up. These actions are sealed with the employee’s signature within the time limits provided by law. A work book is issued with the appropriate note (that there was a dismissal due to staff reduction), and a full payment is made.
Severance pay is a compensation payment from the employer, which is mandatory and is paid within the time limits established by law.

Grounds for carrying out the staff reduction procedure

Under current legislation, the employer is not required to provide information about the reasons for the decision to dismiss due to staff reduction. He has the right to independently manage the process of effective economic management of the enterprise’s activities and rational use of its property, which may be followed by a decision to change the personnel composition.

Thus, dismissal due to reduction does not necessarily have to be justified by the employee who was laid off, but this is recommended for every manager. After all, in accordance with the employee’s constitutional right to work, the employer is obliged to provide evidence of the impact of excess personnel on production processes.

Preemptive right

In some cases, an employee may have a preferential right to remain in his current position, and therefore the employer does not have the right to lay him off or is obliged to offer him another position. And if the employee refuses the opportunity provided, the employer does not have the right to fire him.

Preferential rights arise when an employee has higher productivity or qualifications than other employees occupying the same positions. All things being equal, there are a number of preferences for reinstatement:

Family circumstances. If the employee has two or more dependent disabled family members.
Persons in whose family, due to health or age, there are no other suppliers.
Employees who received occupational injuries or illnesses while working for the organization.
Disabled combatants.
Employees undergoing advanced training, sent for training by the employer.

In the event of a dispute brought before the court, if the employee can prove that those remaining in similar positions have less qualifications and labor productivity than himself, then the dismissal may be declared illegal, with the employee reinstated in his position.

When not to cut

Dismissal cannot be applied to an employee if:

He is on vacation.
Temporarily disabled.
This is a pregnant woman.
We are talking about a woman who has a child who is under 3 years old.
This is a single mother raising children under 14 years of age or a disabled minor.
This is an employee who is raising children of these categories without a mother.

Reduction of minors

In accordance with the current Labor Code, under Article 269, dismissal of an employee due to reduction, if the employee is a minor, is possible only with the complete liquidation of the organization or with the consent of the State Labor Inspectorate for Minors. Only with the written permission of this organization will the dismissal order be considered valid and legal.

Reduction of pensioners

Dismissal of an employee due to staff reduction, if the employee is on a pension, is carried out on a general basis. However, if the dismissed pensioner is not provided with work within the next two weeks by the Employment Center, the enterprise is obligated to pay the average monthly salary for 3 months from the very day of dismissal.

Step-by-step dismissal due to staff reduction

If it becomes necessary to dismiss employees due to staff reduction, the employer must adhere to the following procedure:

Issuance of a decree on the creation of a commission to reduce the number of staff.
Make a decision of the commission on drawing up a protocol and an exact list of employees to be laid off.
Issuance of an order by the employer to reduce staff with a clearly drawn up list of positions and employees to be reduced.
Notify the employee of the upcoming dismissal.
Offer the employee to take another vacant position.
Notify the union, if there is one, of the planned layoffs.
Obtain permission from the trade union for the candidacy specified by the employer.
If there are minors on the list of employees, obtain the consent of the State. Labor Inspectorate and Commission on Minors' Affairs and Protection of Their Rights.
Notify the local employment service authorities in writing.
Document the transfer of employees who have agreed to take other positions.
Officially formalize the dismissal of employees who do not agree to take the proposed vacant positions.
Calculate payment of severance pay and compensation to employees.

Compensation payments

Upon termination of the employment contract, if the employee has not expressed his consent to the opportunity to take a vacant position at the enterprise, the employer is obliged to assign and pay severance pay for dismissal due to reduction, which should be equal to the average monthly salary of the employee. In the case of an increased amount established in accordance with a collective or labor agreement, the organization is obligated to pay exactly this amount. The Labor Code of the Russian Federation provides for the payment of dismissal benefits due to a reduction in the organization's staff, as well as the mandatory payment of taxes on them.

In addition to paying severance pay, the company is obligated to maintain his average salary for the duration of the dismissed employee’s employment, which does not exceed 2 months from the date of dismissal. These payments may continue for a third month. Such a decision can be made by the employment service if, after two weeks from the date of dismissal of the employee, he applied to these authorities and was not employed by them.

Compensation compensation is provided if, during the notification of the employee about the upcoming layoff, he agreed to the early termination of his employment contract, which must be in writing. Such compensation is equal to average earnings.

Reduction of union workers

Dismissal due to reduction of parties, one of which is an employee of a trade union organization, must be carried out in the usual manner. And also notify representatives of the organization, who must make an informed decision regarding this employee. This information must be provided to the manager no later than 7 days from the date of notification. The following documents must be submitted by the employer:

Draft order on reduction.
Written justification of the reasons.

If the trade union organization does not agree with the manager’s decision and within the specified 7 days has submitted its opinion to him, then a dialogue can be organized between the employer and representatives of the trade union organization about the appropriateness and legality of the decision made. In this case, the union is obliged to provide solutions to the manager within the next three days. If no general decision has been made, the employer reserves the right to make a final decision, which can be challenged in court.

It should also be taken into account that the manager has the right to terminate the employment contract with the employee no later than 1 month after receiving the union’s opinion. This time should not include periods when the employee was on vacation or absent due to temporary disability.

In this case, an ambiguous situation may arise when the employer notifies the trade union organization about the layoff of workers 2 months in advance, and in the very first days stipulated by law, the trade union expresses its opinion in the form of agreement with the layoff of the specified employee. Then, by the time the date of termination of the employment contract arrives, more than 1 month has passed, and such an action will be considered illegal, which will entail the reinstatement of the employee in his position. In such cases, the employer repeatedly requests a written opinion from the trade union, the validity of which coincides with the moment of termination of the employment contract.

Dismissals to reduce leadership positions in trade union organizations are allowed only with the prior consent of higher-level elected trade union organizations. And in the absence of such permission, the employer cannot reduce the leadership position of the trade union. If the employer decides to dismiss such an employee without the consent of higher trade union organizations, then such dismissal is illegal and entails the restoration of the employee to his previous position.

In this case, the employer is obliged to provide the highest body of the trade union organization in writing with reasoned evidence indicating the reasons for the expediency of dismissal for the economic growth and development of the enterprise, which should not be conditioned by the employee’s implementation of trade union activities.

If the employee is the head of a trade union that is not related to this enterprise, then the head of the enterprise must also obtain confirmation from higher trade union organizations to dismiss such an employee. And if this consent to dismissal is not received, it will also be considered illegal and invalid.

In some cases, employees express a desire to receive copies of documents: dismissal orders, notices and other papers. Such a requirement must be stated in writing, and on its basis the employer is obliged to provide the entire package of requested documents to the dismissed employee within three days. The refusal of such a request may be motivated by the fact that the documents contain information not related to the employee’s work, which should not be disclosed. In this case, the employer is obliged to issue extracts from these documents, but he has no right to refuse to receive a copy of them in any form, and such a refusal will be considered an illegal action.

Sometimes, due to circumstances beyond the control of the employer, it is necessary to reduce the number of employees, however, despite the reasons for this need, the manager must strictly follow the letter of the law and the standards provided for by the current Labor Code and take care of the dismissed employees. Dismissal due to staff reduction, compensation for loss of source of income and position held are both the right and obligation of every employer.

ADJUSTMENT OF STAFF SCHEDULE

First of all, you need to develop a reduction plan and prepare an order to make changes to the staffing table of the construction company.

GUARANTEES OF LEGISLATION

When preparing the relevant documents, it is necessary to remember that some categories of employees, when staffing is reduced, have a priority right to be retained at work, and some cannot be laid off in principle.

Preferential rights are given to employees with higher labor productivity and qualifications. This is defined in Article 179 of the Labor Code of the Russian Federation.
With equal labor productivity and qualifications, preference is given to:
- family - if there are two or more dependents;
- persons in whose family there are no other workers with independent income;
- employees who received a work injury or occupational disease while working in this company;
- disabled people of the Great Patriotic War and disabled combat veterans;
- employees who improve their qualifications in the direction of the employer without interruption from work;
- other categories of employees whose preferential rights are determined in the collective agreement.

Who can't be laid off? Termination of a contract at the initiative of the employer due to a reduction in the number or staff of the following employees is not allowed (Article 261 of the Labor Code of the Russian Federation):
- pregnant women (dismissal of a pregnant employee is permitted if she was hired for the duration of the duties of an absent employee and there is no possibility of transferring her to a vacant position);
- women with children under three years of age;
- single mothers raising a child under the age of fourteen (a disabled child - up to eighteen years);
- other employees raising these children without a mother.
It is also impossible to lay off workers during illness and while on vacation (Article 81 of the Labor Code of the Russian Federation).
In practice, the question often arises: is it possible to dismiss a person who is on probation? Yes, you can. After all, such workers are subject to all labor law norms that apply to ordinary full-time employees.

NOTICE OF UPCOMING REDUCTION

The company is obliged to notify not only employees, but also the employment service of the upcoming layoff.
Employees must be notified of the upcoming dismissal personally and against receipt at least two months before the expected date of dismissal (Article 180 of the Labor Code of the Russian Federation). The form for such a notification has not been officially approved, so it can be compiled in any form.
At the same time, the company, with the written consent of the employee, has the right to terminate the employment contract with him earlier - before the expiration of a two-month period. However, in this case, the employee will have to pay additional compensation in the amount of average earnings, calculated in proportion to the time remaining until the end of the term.
Please note: notice periods may vary.
Thus, workers who have entered into fixed-term employment contracts for a period of up to two months must be notified of layoffs at least three calendar days in advance, and workers engaged in seasonal work - seven calendar days in advance (Articles 292, 296 of the Labor Code of the Russian Federation).
The company must also notify the employment service of the upcoming dismissal no later than two months in advance. And if we are talking about mass layoffs - three months in advance. This procedure is provided for in paragraph 2 of Article 25 of the Law of April 19, 1991.
No. 1032-1 “On employment in the Russian Federation” and Article 82 of the Labor Code of the Russian Federation.
In this case you need to fill in:
- “Information about the mass release of workers”;
- “Information about laid-off employees.”
The forms of the forms are given in Appendices No. 1 and No. 2 to the Regulations on the organization of work to promote employment in conditions of mass unemployment, approved by Resolution of the Council of Ministers - Government of the Russian Federation of February 5, 1993 No. 99.

OFFER OF AVAILABLE VACANCIES

It is important to remember that dismissal due to staff reduction is considered legal only if the company does not have the opportunity to provide people with other work available in the organization. Moreover, vacancies that correspond to the qualifications of the employee being laid off, as well as lower-ranking (or lower-paid) vacancies are taken into account. The main thing is that the employee gives his written consent to the transfer (if he can perform other work taking into account his state of health).
At the same time, the employer is obliged to offer the dismissed all vacancies available in the given area that meet the relevant requirements. Offering work in other areas should only be done in cases where such an opportunity is provided for by a collective or labor agreement (Article 81 of the Labor Code of the Russian Federation).
The offer form for available vacancies is also not officially approved, so it can be compiled in any form.

CRITERIA FOR MASS TERMINATION

They are defined in sectoral or territorial agreements. There is no such document for construction. Therefore, one should be guided by the general standards established in paragraphs 1, 2 of the Regulations approved by Resolution No. 99. The main criteria for mass layoffs are the indicators of the number of dismissed workers in connection with the liquidation of organizations or a reduction in the number or staff of employees for a certain calendar period. These include:
a) liquidation of an organization of any legal form with 15 or more employees;
b) reduction in the number or staff of the organization’s employees in the amount of:
- 50 or more people within 30 calendar days;
- 200 or more people within 60 calendar days;
- 500 or more people within 90 calendar days;
c) dismissal of employees in the amount
1 percent of the total number of employees in connection with the liquidation of an organization or reduction in headcount or staff within 30 calendar days in regions with a total number of employees of less than 5,000 people.
Depending on the territorial and sectoral characteristics of economic development and the level of unemployment in the region, other criteria for assessing mass layoffs may be established to enhance the social protection of employees of organizations, determined by government authorities of the republics within the Russian Federation, territories, regions, autonomous entities, cities and districts.
COORDINATION WITH THE TRADE UNION

The employer, according to part one of Article 82 of the Labor Code of the Russian Federation, when making the appropriate decision, is obliged
inform the elected body of the primary trade union organization about this in writing no later than two (three - in case of mass layoffs) months before the termination of employment contracts with employees.
In this case, one should take into account the position of the Constitutional Court of the Russian Federation, which is expressed in the ruling of January 15, 2008.
No. 201-O-P. The court emphasized that the purpose of this norm is to provide the trade union organization with the time necessary to implement its existing opportunities to protect the social and labor rights and interests of workers upon termination of employment contracts with them, but in no way restricts the employer’s powers to independently make the necessary personnel decisions in order to carrying out effective economic activities. This conclusion is based on the constitutional requirements for a fair coordination of the rights and interests of employees with the rights and interests of employers as parties to an employment contract and as participants in a social partnership.
In other words, the consent of the elected body for reduction is not required; it is enough to notify it in writing.
When laying off employees who are members of a trade union, the reasoned opinion of the elected body of the primary trade union organization must be taken into account in accordance with Article 373 of the Labor Code of the Russian Federation.

TERMINATION

After two months after delivery of the notice of layoff, the employer has the right to issue an order to dismiss the employee. After the employee has read the order (against signature), a dismissal entry is made in his work book.
The order is issued in form No. T-8, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1.
How to draw up a work book in the event of a layoff is explained in Section 5 of the Instructions approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69. Thus, when terminating an employment contract at the initiative of the employer, including in the event of a reduction in staff, an entry is made in the work book about dismissal (termination of an employment contract) with reference to the corresponding paragraph of Article 81 of the Labor Code of the Russian Federation. For example: “Dismissed due to a reduction in the organization’s workforce, paragraph 2 of Article 81 of the Labor Code of the Russian Federation.”
The wording of the entry in the book must correspond to the wording of the paragraph (article) of the Labor Code of the Russian Federation indicated as the basis for the entry. Abbreviations are not allowed either in the text or in references: you cannot write “trans.” instead of “translated”, “p.” instead of “clause”, “Labor Code of the Russian Federation” instead of “Labor Code of the Russian Federation”, “pr.” instead of “order”, etc. (clause 1.1 of the Instructions). This is required to eliminate possible discrepancies.

Payments upon layoff

Dismissed employees must be paid on their last day of work. If a person did not work on the day of dismissal, then the money is paid to him the next day after he applied for it.
This procedure is established in Article 140 of the Labor Code of the Russian Federation.

WHAT PAYMENTS ARE ALLOWED TO AN EMPLOYEE

Upon dismissal due to a reduction in headcount or staffing, the employee is entitled to pay:
- severance pay in the amount of average monthly earnings;
- average earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).
This is stated in Article 178 of the Labor Code of the Russian Federation.
In exceptional cases, the average monthly salary is retained by the laid-off employee for the third month from the date of dismissal.
But this requires a decision from the employment service (it can be issued if a person applied within two weeks after dismissal and was not employed).
For builders working in organizations located in the Far North and equivalent areas, Article 318 of the Labor Code of the Russian Federation provides additional benefits.
Thus, the maximum period for maintaining average monthly earnings for the period of employment is three months from the date of dismissal.
And in exceptional cases, by decision of the employment service authority, the average monthly salary can be maintained during the fourth, fifth and sixth months (if the person applied within a month and was not employed).
In addition, as noted above, if the employment contract is terminated early (before the expiration of a two-month period from the date of notification, with the written consent of the employee), additional compensation is due. The amount of compensation is equal to average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal (Article 180 of the Labor Code of the Russian Federation).
And of course, the dismissed employee must be paid compensation for unused vacation (including additional).
Please note: when foreign construction workers are dismissed upon expiration of quotas (based on clause 12 of Article 83 of the Labor Code of the Russian Federation), severance pay is not paid. Article 178 of the Labor Code of the Russian Federation does not provide for its payment in this case. But such a dismissal is not considered a reduction.

Sometimes the reason for the dismissal of one or more employees of an enterprise is not the decision of the employer or the employee himself, but an objective necessity. The situation may be related to the transition to a new (automated) level of production or to the fact that the organization no longer needs the same number of employees. In such cases, there is a reduction in the number or staff of employees.

For the employer, this becomes a legal tool that allows optimizing the composition of personnel and the structure of the staffing table. However, the use of such a technique is associated with a large number of nuances and requires compliance with many rules.

Basic concepts and terms

In order to understand the intricacies of the topic and understand who, how and under what circumstances can be fired if there is a reduction in staff, you should define the main concepts:

The number of employees is the number of all employees of the enterprise, in other words, this is the payroll. If we are talking about dismissing several representatives of the same profession performing similar functions, while maintaining the position on the staff list, then this is a reduction in the number of employees. An example would be the dismissal of three out of five architects.
The staff of employees is absolutely all positions represented in the company (managerial, administrative, workers and others). Their list represents the staffing table, in accordance with which the structure of the organization’s personnel is formed.
Reducing the number of staff may be necessary in order to exclude from the list positions that duplicate each other, or those that can be combined into one staff unit. This concept also includes measures aimed at eliminating any division.

This means that staff reduction is accompanied not just by a decrease in the number of employees with the same responsibilities, but also by the dismissal of all employees performing specific job functions. Returning to the example above, a downsizing would result in all five architects being laid off. Perhaps it is more profitable for the company not to keep these employees on staff, but to hire them from time to time to perform a separate task (outsourcing).

Legislation on dismissal due to staff reduction

The legal aspects accompanying the severance of labor relations due to changes in the structure of the staffing table are regulated by the Labor Code of the Russian Federation. A reduction in the number of employees (due to the liquidation of an organization or a change in its owner) is discussed in Article 81. Other common situations related to the termination of contracts with employees at the initiative of the employer are also listed here.

Among other cases, this article provides for the procedure for dismissing employees:

Who can be laid off?

The decision on which the reduction of the number or staff of employees depends is made by the employer, but at the same time he must take into account the rights of employees enjoying certain benefits.

When considering candidates for employees subject to dismissal, the manager is obliged to comply with the rule set out in Art. 179 TK. It states that staff reductions should occur at the expense of the least qualified personnel, who have the lowest labor productivity indicators. The practical implementation of this rule is often associated with an assessment of the experience and length of service of employees. It is assumed that those who have recently worked at the enterprise represent the least value to the team.

To assess the importance of an employee, the result of the qualification exam, his education and the level of performance for the previous period are also of great importance. This means that when comparing two employees occupying the same position, preference will be given to the one who has a higher education. His colleagues who received secondary specialized education will probably be laid off.

Categories of personnel not affected by dismissal due to staff reduction

The reduction in staff does not affect the following categories:

Parents of children with disabled status.
Mothers and fathers raising children on their own (single).
Parents of large families until the youngest child turns 14 years old.
Citizens who are the sole breadwinners of their families.
Employees who have suffered an occupational injury or illness as a result of their work at that company.
Disabled people who suffered as a result of wars, the Chernobyl disaster or the Semipalatinsk tests.
Employees of the company who have awards (Hero of the USSR, Knight of the Order of Glory) or the title of inventor.
Workers who combine the performance of their work functions with training.

Dismissal due to staff reduction does not affect those employees who are members of a trade union or act as elected representatives of the work collective and take part in negotiations with the company's management.

Also, employees of an enterprise who are on sick leave, regular or maternity leave cannot be fired. True, this can be done with their written consent or upon complete liquidation of the company.

How retirees and part-time workers are laid off

The Labor Code of the Russian Federation (Article 3) contains a ban on employer discrimination based on age. Most often this applies to employees who have reached retirement age and continue to perform their job duties. If necessary, they will also be affected by redundancy, but it is illegal to use their social status as a basis for dismissal.

Taking into account the experience and qualifications of pensioners, they, on the contrary, fall under the definition of employees with preferential rights. Based on the fact that they can be one of the most useful employees of the enterprise, they are the last to be laid off.

When planning the dismissal of an employee who combines two positions, the employer performs almost all standard actions. The only difference is that the law does not establish whether it should accrue payments to such an employee.

In fact, redundancy benefits are necessary for those who lose their source of income. However, while remaining in the company, the part-time worker continues to receive wages. Here the decision on payments and their amount remains with the employer.

Why do employers resort to layoffs?

The state allows enterprise managers to independently decide on the need to reduce staff or the number of personnel. However, in the event of controversial situations, the economic feasibility of these measures can be verified by the judiciary.

This condition places the obligation on the employer to inform its subordinates about why the workforce is being reduced. This information is set out in the relevant order and may be related to the following factors:

With a low level of profitability. The lack of profit does not allow management to pay at the proper level for the work of the previous number of employees. By reducing labor costs, an organization can save some money to pay off debts or purchase a new batch of materials.
Ineffective staff structure. If among the organizational positions there are those that duplicate each other or do not represent value for business activities, their elimination will be justified.
Introduction of new technologies or equipment. When production becomes more automated and does not require the same number of employees, staff reduction can significantly reduce costs and increase profitability.

What rules must an employer follow when reducing staff?

The forced dismissal procedure can significantly affect the well-being of those employees who are subject to layoffs. They do not always have the opportunity to find a workplace with the same conditions as at this enterprise. For this reason, the state dictates certain conditions to managers, compliance with which to a certain extent protects the interests of dismissed workers:

In the event that the company’s management “forgets” to inform the employment service about its intentions, in addition to fines, the court may oblige them to pay wages to employees for forced absences.

How staff reduction occurs: step-by-step instructions

Any head of a company or organization, when planning and implementing staff reduction measures, must know and comply with all legal norms and requirements. Ignoring or unintentionally violating one or more rules can lead to quite serious consequences: a fine or legal proceedings.

Based on this, the employer is interested in carrying out a phased reduction of staff (the Labor Code of the Russian Federation establishes a list of necessary documents and procedures):

In the event that an employee does not agree to the transfer and continuation of cooperation with the company, the last on the list of required documents is an order for his dismissal. The unified form T-8 is recognized as usual for this document.

How is dismissal due to staff reduction completed: compensation for vacation, severance pay

The dismissal of an employee who was informed on time and refused the offered vacancies takes place simultaneously with the payment of all necessary funds to him.

Along with the work book, the former employee is given:

Wages accrued for the last period worked.
Compensation payments for unused vacation (if any).
Special payments in case of staff reduction (severance pay). Their amount is often equal to the average salary, but can be higher if this is specified in the collective agreement.

The company continues to pay redundancy benefits to the employee for another two months if he is listed on the labor exchange but cannot find a job. Its size is set at the average salary, but it does not take into account the amount that has already been issued.

If an employee wishes to resign earlier than the deadline set by the employer, he must be paid the money accrued for unworked time. That is, in fact, in any case, he will be paid for the two-month period between the announcement of the reduction and the date on which this procedure is planned.

Payments to certain categories of personnel

The procedure for laying off some employees is slightly different from the one outlined above. This is due to the non-standard nature of their work functions or special circumstances:

For those employees whose duties are considered seasonal, redundancy payments amount to an amount equal to the average salary for two weeks.
Employees of organizations located in the Far North are paid a one-time severance pay and an average salary for three months (if they are not hired earlier).

What will be indicated in the work book

According to Art. 81 of the Labor Code, staff reduction is indicated as a basis for termination of an employment contract in the employee’s work book. It is issued on the day of dismissal along with the accrued amount of money. Upon receipt of them, the former employee of the enterprise signs several documents (personal card, work record book, insert).

The confirmation of the entry that the employment contract has been terminated is the signature of the HR department employee (who maintains work records) and the employee being dismissed, as well as the seal of the manager.

What should an employee's behavior be like when being made redundant?

When a person receives notice that he is planning to be laid off, he should take the following actions:

Make inquiries about the list of persons who do not have the right to dismiss and find out if he is included in this category. In the event that they discover any factor that gives the right to privileges or benefits, this should be stated in a letter and submitted to the manager. The best option is to write the letter in two copies. One of them is given to management with a request to put a mark of receipt on the second. This will be useful evidence in favor of the employee if the case goes to court.
Present demands regarding an alternative place of work at this enterprise. The employee does not have to agree to the offer, but a written refusal by the employer to provide vacancies may also become grounds for canceling the decision to lay off.
To receive additional payments, you must register with the employment service within a period of no more than two weeks after the staff reduction was made. The Labor Code of the Russian Federation specifies exactly this period. Then the employee becomes entitled to two months' allowance (average wage) if he fails to find a new job.

The most important aspect is that the employee should not write a letter of resignation himself after he becomes aware of the upcoming layoff.

Also, you should not give in to your boss’s persuasion and compromise, because dismissal by agreement of the parties does not provide for the payment of severance pay.

Professions at risk

Given the difficult economic situation, layoffs may affect a fairly wide range of companies and organizations. Doctors and teachers may not fear for their jobs, but many firms will still undergo reorganization.

Among employees of budgetary enterprises, funding for the following professions may be limited:

Employees involved in the telecommunications sector.
Librarians.
Postal workers.
Mosgotrans employees.
Reduction of the staff of the Ministry of Internal Affairs.

In addition, some employees of state and commercial banks will have to look for new jobs.

Experts say that against the backdrop of such a disappointing situation and in the absence of wage increases, many highly qualified personnel will quit on their own initiative. Without waiting for layoffs, they will learn new relevant professions or look for applications for their talents in other countries.