In what cases is an employee laid off? Is additional compensation due upon dismissal due to redundancy? Issuance of a dismissal order

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.

Unstable periods in the life of Russia are much more common than times of prosperity and general contentment. Therefore, all managers and their employees must be prepared for the fact that staff reductions and related layoffs may be required at any time. The editors of the site will help you understand how this procedure occurs, what you need to know so that temporary difficulties do not bring big troubles for the employer, and what payments are due to employees upon dismissal due to staff reduction.

One of the biggest troubles for a company is forced dismissal due to staff reduction. Let's consider what the 2018 compensation is, which must be paid to employees excluded from the state by the employing organizations, what are the documents that need to be completed, as well as the deadlines that need to be met. We will also tell you what rights of employees cannot be violated in the event of staff reduction or liquidation of the enterprise.

Who can't be laid off?

The current labor legislation defines a list of persons who cannot be fired during staff reductions. These include:

women who are on maternity leave (Article 265 of the Labor Code of the Russian Federation);
pregnant women;
women with children under three years of age;
single mothers raising a child under 14 years of age (disabled child under 18 years of age);
other persons raising children under 14 years of age (disabled children under 18 years of age) without a mother (Article 261 of the Labor Code of the Russian Federation).

You also cannot dismiss employees due to staff reduction who are on sick leave or on vacation. Exception - or termination of the activities of an individual entrepreneur. The reduction of minors is permissible conditionally: for this it is necessary to obtain the consent of the relevant state labor inspectorate and the commission for the affairs of minors and the protection of their rights (does not apply to the situation of liquidation of an enterprise).

Dismissal due to staff reduction: step-by-step instructions - 2019

Step 1. The procedure for staff reduction (as well as liquidation of an organization) begins with the appropriate. In this document, the manager must indicate:

which staffing units and in what quantity are subject to exclusion;
the reason for the reduction in staff;
list and timing of activities that need to be completed before the date of dismissal;
data of responsible persons.

A sample dismissal order for staff reduction looks something like this:

Obviously this is a general order. It is compiled in free text form. It must be familiarized with the signature of the HR specialist responsible for the listed activities.

Step 2. Compliance with the notice period is mandatory, but there are some exceptions. For example, it happens that an employer wants to dismiss an employee before the expiration of a two-month period. However, he has the right to do this only with his consent, and in writing. If a person is against it, no one has the right to force him. In case of dismissal earlier than the appointed date, employees who agreed to this are paid additional compensation upon dismissal for staff reduction in the amount of average earnings in proportion to the time remaining before the expiration of the notice of dismissal.

Step 3. Before dismissing an employee, the employer is obliged to offer him another available job - a vacant position. Moreover, it may correspond to the qualifications of a specialist, or it may not. Other work may be lower paid or in a lower position. This article of the Labor Code, with all the reservations, gives free rein to the manager who can offer, say, the chief accountant the position of a cleaner. Although in practice it usually does not come to this.

According to the provisions of Article 179 of the Labor Code, employees with higher qualifications and labor productivity receive an advantage when optimizing staffing: they are required to be fired last. But often managers neglect this responsibility. A simple rule applies here: higher productivity and qualifications must be documented. To do this, they use data on the fulfillment of production standards, the quality of work performed, and the absence of defects. Higher qualifications can also be indicated by the employee having primary, secondary, higher professional education, as well as receiving a second education, having an academic degree, academic title, etc.

It can be carried out according to a special procedure with passing an exam. It is advisable to do this if the procedure for dismissal due to reduction of staff or number of employees causes difficulties for management. Such independent assessments of qualifications are provided for in the relevant regulations on their conduct. You can also specify in the organization’s local acts the compliance with professional standards approved by the Ministry of Labor for those employees who will be the last to be laid off. If labor productivity and qualifications are the same, the manager usually decides together with the trade union. The following may be taken into account:

having two or more dependents;
absence of other independent workers in the family;
work injury or occupational disease received in this organization.

It is important to carefully consider these factors, since if a disagreement arises, a person can go to court and if the management did not take something into account or violated the established procedure for dismissal, the employee will be reinstated in his previous place, and the organization will have to pay him a salary for forced absence.

Step 4. In addition to the upcoming staff reduction procedure, the employer is also obliged to notify the trade union about this. A document is sent to the employment service with information about the position, profession, specialty, qualification requirements, and payment conditions for each specialist being laid off. This is done as required. All information must be submitted to the employment service and the trade union within the same time frame as notifying the workers themselves. That is, at least two months before the layoff. In case of mass dismissal - no later than three months. Typically, mass dismissal is considered to be the dismissal of more than 20 people at the same time.

For organizations that did not report the alleged mass layoffs or that violated the deadlines for providing information, the employment service must send information to the prosecutor's office for taking action against the perpetrators. The trade union (if there is one in the company) is notified of staff reductions in any form. In the notification, the employer is required to indicate the date, indicate the number of staff units being reduced, and provide a link to the order. The date is extremely important, because it is from this date that the two months for subsequent dismissal of employees will begin.

Step 5. When reducing staff, the first responsibility of the company is to provide employment for the laid-off employees. The law directly obliges the employer to do this constantly from the moment of notification of staff reduction, and at least twice - at the time of warning and immediately at the time of dismissal. If vacancies appear within this two-month period, they must immediately offer them in writing to the employees being laid off and under no circumstances hire new people to fill them. First of all, a person is offered a vacant position similar to the previous one. In the absence of such, the employer must offer the subordinate a lower position in which he can work, taking into account education, qualifications, work experience and health status. If the employee agrees, the transfer procedure is formalized. If he refuses, a written refusal is issued in the form of a special act. This gives the employer the right to offer this position to another employee who has been laid off. All vacancies must be included in the staffing table with a set salary (rate) and be provided with a job description. If there are no vacant positions, the manager must draw up an act stating the impossibility of transfer. These documents are drawn up in any form.

Step 6. Based on the order to reduce staffing positions, it is necessary to issue personal orders for all persons who must be dismissed. They should be familiarized with the personal signature of each of the laid-off employees personally two months before dismissal. The two-month period is supposed to be counted from the next day after the employees are notified. Upon completion of a two-month period from the date of warning to employees, the employer must issue a new order for the organization approving its decision to reduce the number of staff and introducing a new staffing table. Remember that you can fire a person only after removing his position from the staff list. Moreover, in such a staffing table there should be no homogeneous vacant positions, otherwise the laid-off employee will be able to be reinstated at work through the court.

Termination of an employment contract with an employee is formalized by order using a special form approved by the State Statistics Committee of Russia. He must be familiarized with the order against his signature. If this is not possible, say, the person does not want to sign for familiarization, then the order must be written “refuse to familiarize with a signature.” On the day of dismissal, the employer is obliged to give it to the employee with the following entry: “Dismissed due to a reduction in the number of employees of the organization, paragraph 2 of part 1 of Article 81 of the Labor Code of the Russian Federation.” If on the day of dismissal the employee did not pick up his work book, he must be sent a notice with an invitation to come for the work book or allow him to send it by mail. From the day this document is sent, it is considered that the employer has fulfilled the obligation to issue a work book and is now not responsible for the delay in its issuance (Article 234 of the Labor Code of the Russian Federation). He is freed from the need to pay the employee the amount of wages he did not receive during the delay. In addition to the work book, the employee has the right to receive copies of other documents related to his work, but only upon his written application.

Step 7 In addition, it is necessary to pay severance pay and compensation in case of unemployment in the first two months after staff reduction. We talked about how to calculate all the necessary amounts in a separate section. It provides details of redundancy dismissals, and 2019 compensation is calculated using examples. All payments in this case are regulated; in particular, it says about the timing: “no later than the next day after the presentation of the request for payment.” Each employee who is subject to staff reduction must receive severance pay in the amount of average monthly earnings. In addition, he retains his average monthly earnings for another two months or less until he finds another job. Moreover, in order to receive compensation for the second month, the former employee must contact the employment service within two weeks after dismissal and not find a job until the end of the second month. In this case, his average monthly earnings will be retained for the third month. But only with a certificate from the employment service. By the way, when retired due to staff reduction, pensioners receive severance pay and other compensation like ordinary employees. And the head of the organization, his deputies and the chief accountant upon dismissal due to a change of owner have the right to receive compensation in the amount of not less than three average monthly earnings.

Responsibility for violation of the staff reduction procedure

The employer may be punished for each violation of the procedure for dismissing an employee due to redundancy. For violation of the deadline for payments upon dismissal, he will be obliged to pay the entire amount due to the employee, plus interest in the amount of not less than 1/150 of the key rate of the Central Bank (equal to the key rate) on the amounts not paid on time for each day of delay (Article 236 of the Labor Code), as and in case of delay in issuing a work book.

In case of failure to fulfill obligations to provide available vacancies, the employer may be fined under Art. 5.27 Code of Administrative Offences. It must be remembered that violations of labor legislation are monitored by the Federal Labor Inspectorate and the Prosecutor's Office. An employee who decides that his rights have been violated can first contact his trade union, if the company has one. In this case, employers are required to respond to the application within a week. If the problem cannot be solved, the person may contact the labor inspectorate and the prosecutor's office, and this will cause an unscheduled inspection of the employer.

In addition, anyone with a labor dispute can go to court. He can do this within three months from the day he learned or should have learned about a violation of his labor rights. And in disputes about dismissal - within one month from the date of delivery of a copy of the dismissal order or from the date of issue of the work book. At the same time, employees are exempt from paying fees and court costs. If dismissal or transfer to another job is recognized as illegal, the employee must be reinstated in his previous job by the body considering the individual labor dispute. In this case, he will be paid the average salary for the entire period of forced absence or the difference in earnings for the entire period of performing lower-paid work, as well as for moral damages. The decision to reinstate an illegally dismissed employee or to reinstate an employee who was illegally transferred to another job to his previous job is subject to immediate execution.

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.

Losing a job is not a very pleasant moment. This can happen at will. Dismissals due to staff reduction are often carried out. Payment of benefits in this case is guaranteed by law. The procedure for leaving work for this reason has its own characteristics.

Concept

Staff reduction is a procedure established by law. Dismissal in this case must occur in accordance with the Labor Code of the Russian Federation. Failure by the employer to comply with its terms will result in the employee being reinstated to his position.

Additionally, the employer will pay for illegal dismissal a salary for the entire period of absence. Work disputes are often resolved in court. Moreover, the side of former employees is often taken.

Rules of law

Issues related to reduction are regulated by the Labor Code of the Russian Federation. The main aspects are present in:

Art. 178 and 179 - requirements and procedure.
Art. 261 - guarantees.
Article 296 - provisions on the reduction of seasonal workers.

Rights

The rights of an employee during staff reduction are protected by law. Some employees are provided with protection against dismissal. They can be reduced only upon liquidation of the institution. There are some categories of people who are given preferential rights to remain in positions. Therefore, if it is liquidated, the employer must offer the person another job.

Benefits:

Employees who become ill or injured due to work.
Persons who have 2 or more disabled people as dependents.
Employees who are considered the sole breadwinners in the family.
Disabled combatants.
Workers upgrading their skills.

For example, a person is considered the only one in the family who brings in income. If a position is eliminated, the employer is obliged to offer him another vacancy.

Features of reduction

Dismissal may be due to staff reduction or elimination of a position. These procedures have their own characteristics. Management is not required by law to provide reasons why such events occurred. But he still must provide the reasons for the surplus of personnel.

Staff - the total number of positions in the company. Its reduction often does not depend on management. But the norms of the Labor Code of the Russian Federation must still be observed. In some cases, reduction does not imply dismissal, but only reassignment of employees. It may also apply to a specific position. Then a new schedule is drawn up, where there are no old positions.

Dismissal may affect all employees. This also applies to pensioners. Payment of benefits is guaranteed by law. For example, a person registers with the employment service in order to receive income, and in the meantime is looking for a new job. A minor can be dismissed only with the complete liquidation of the institution, as well as with the permission of the State Inspectorate. In other cases, depriving persons under 18 years of age of work is illegal.

Description of the procedure

There is a procedure for dismissal due to staff reduction. If it is carried out, there is no reason to go to court due to illegal actions. The procedure is as follows:

An order is created. It should contain lists of positions that need to be eliminated. The persons responsible for this procedure are also identified. The form of the document is arbitrary.
A new schedule is drawn up based on form No. T-3. It indicates the number of staff, positions, rates and salaries.
An order is issued on the basis for introducing the staffing table. The document informs employees about the beginning of its validity.
The candidates' personal files are reviewed. A commission is being organized to analyze whether people have advantages. Based on the results, a protocol is drawn up, which indicates the conclusions about the impossibility of dismissing employees.
A notification is issued to employees about the upcoming event. All persons indicated in it must read and sign.
Those employees who decide to terminate the contract early need permission to terminate early. It is sent to the employer in writing.
The notification is then sent to the employment center and the trade union.
If the employer has vacant positions, laid-off employees can fill them.
After all issues are resolved, an order of form No. T-8 is issued to terminate the contracts.
Entries are made in work books, where clause 2, part 1 is indicated
Workers receive payments. Certificates of income for 2 years can also be provided.

This is the procedure for dismissal due to staff reduction. If an employee registered with the military has been dismissed, management is given 2 weeks to notify the military registration and enlistment office about this. If the person from whose income the funds were paid under the writ of execution is laid off, the bailiff should be notified about this.

Notification

Only after notification should dismissal due to staff reduction occur. Payment of benefits will be a legal measure of social protection of citizens. The notice must be issued 2 months before the new schedule takes effect. It includes a list of all those fired. If a seasonal worker is laid off, notification must be given 7 days in advance. If an employee whose contract is valid for 2 months resigns, then notice is given 3 days in advance.

Without notification, the procedure will be considered invalid. A list of documents must be drawn up with the dismissal. In this case, the employer must comply with certain deadlines. For example, at least 2 months must pass from the date of issue of the order to the procedure itself. Only in this case the procedure will be legal.

Payments

If there is a dismissal due to staff reduction, payment of benefits is mandatory. Provided:

Salary for the last month and compensation for unspent vacation. Payment must be made no later than the last day of work.
Severance pay. If there is a dismissal due to staff reduction, payment of this type of benefit is mandatory. It is transferred within 3 months after the layoff, if the person does not get a new job. For the first time, it is paid in advance, taking into account the calculation upon dismissal.
Privileges. Provided upon registration at the employment center if no new job has been found in 3 months. Only then does this organization provide payments in case of staff reduction. Examples and features of these procedures allow you to understand what you should expect. For example, if a person is considered unemployed for 4 months, the employment center provides benefits, so the person can search for a suitable position.

Payment amounts

If an employee is laid off, he will receive payments based on the law. In this case, the size corresponds to the amount of average monthly income.

Benefits are calculated as follows:

From 4 to 7 months - 75%.
From 4 months after the indicated period - 60%.
Then - 45%.

Everyone should be provided with an income wherever redundancy occurs. Examples of compensation will help you determine how much you should expect. The employee's average income is taken into account. If it is 20,000 rubles, then in unemployment it will be 15,000 rubles from 4 to 7 months. Then income will decrease. During this time, using the employment center, you can search for a suitable vacancy.

Who is prohibited from being fired?

There are several categories of persons to whom guarantees are provided. It will not be possible to fire them; it is considered an exception. They should be offered other vacancies. The new job should be similar to the old one in terms of pay and qualifications.

You cannot fire:

Pregnant women.
Mothers of disabled children.
Mothers with children under 3 years old.
Single mothers with children under 14 years of age.
Single fathers with children under 14 years of age.
Minors.
Workers on vacation.
Temporarily disabled.

Guarantees

The law provides guarantees for persons who have been laid off. They have a period during which they can find a new job. Employees are entitled to another position, if available. Transfer to another branch of the company is possible. The guarantee includes receiving benefits.

If you have any complaints about the staff reduction procedure, you can go to court to appeal the decision within a month. It should be borne in mind that this body does not always reinstate people to their positions. For example, this cannot be done if the employee does not fit into the preferential category and the procedure was carried out legally. The court may change the wording of the entry in the work book, as well as ensure the transfer of payments for forced absence.

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

Old and new schedule: one document will indicate the position, but the second will not.
Candidates' personal files: one may have advantages and another may not.
A person’s written refusal to obtain a new position.

Thus, dismissal due to reduction has its own characteristics. Both parties need to take into account the rules of law, since they are the ones that govern such relationships.

It’s not the most pleasant situation for an employer, and even more so for an employee, when layoffs have to be made due to layoffs. How to do everything correctly and with the least losses on both sides? What should you not do? Who can avoid layoffs? What documents must the employer prepare? Legislation provides the answers. The reduction of an employee according to the Labor Code must be carried out only in compliance with all the requirements of the laws of the Russian Federation.

Who is not subject to dismissal due to reduction?

You cannot be fired when reducing staff in 2013 according to the labor code:

pregnant women at any stage of pregnancy)
women who have children under three years of age)
single mothers who have a child under fourteen years of age or a disabled child.

These norms also apply to those who raise such a child without a mother. Dismiss a minor employee due to reduction without the consent of the labor inspectorate and the commission that deals with the affairs of minors and the protection of their rights.

What is needed to prepare for the reduction procedure?

Conditions that are required under the Labor Code when reducing staff in 2013:

Availability of a new staffing table confirming the fact of reduction in numbers or staff.
The presence of an order stating that there is a reduction in the enterprise.
Availability of a written warning to the employee against signature about his layoff. Such a warning is issued at least 2 months before dismissal. You can terminate an employment contract with an employee ahead of schedule, but only with the written consent of the employee and upon payment of compensation in the amount of average earnings. Compensation is calculated based on the time remaining until the end of the warning period.
According to the Labor Code of the Russian Federation 2013, the reduction of an employee in 2013 is possible if the person does not have an advantage in remaining on staff.

Which employees have priority rights?

Employees with the highest labor productivity have an advantage. Qualification can be confirmed:

level of education)
attending advanced training courses)
results of previously conducted certification)
proof of the employee’s qualification level based on reports from his immediate superior, characteristics)
no errors in operation)
employee receiving bonuses or other incentives for high performance results.

A high level of job performance may reflect facts such as completing much more work efficiently or in a shorter time frame than other employees who hold a similar position.

According to the Labor Code of the Russian Federation, when making redundancies, additional abilities of the employee may be taken into account: ability to work on a computer, knowledge of foreign languages, communication skills, etc.

Provided that workers have equal labor productivity, preference is given to:

family people who have two or more dependents)
a family person has no other person in the family who has an income)
the employee was injured or had an occupational disease at this enterprise)
if the employee is a WWII disabled person or a combat disabled person who was injured while performing his duty.
if an employee undergoes on-the-job training at the direction of his employer.

When they talk about the preferential right to remain at work in the event of dismissal due to staff reduction (Article of the Labor Code of the Russian Federation 179), then we are talking only about the position that the employee occupies at the time of reduction. If a redundant employee applies for another position in the same enterprise, then he can be accepted on the same conditions as all other applicants.

Prohibition on staff reductions

When is it impossible to reduce staff according to the Labor Code of the Russian Federation 2013? The decision on the number and staff of employees is made by the employer. This is enshrined in law. But sometimes, according to the Labor Code of the Russian Federation 2013, reductions may be limited. For example, according to Article 14 of the Federal Law “On the Privatization of State and Municipal Property”, an enterprise cannot, without the consent of the buyer of the enterprise, reduce the number of employees of the specified enterprise (we are talking about the time from the date of approval of the forecast privatization plan and until the time of transfer of ownership of the property to the buyer) .

How does the reduction work?

When there is a reduction in the number of employees or a reduction in staffing levels according to the Labor Code, the employer’s procedure is as follows:

10. Regardless of whether compensation was paid or not, the employer is obliged to pay severance pay and earnings for the period of employment of the former employee. Exactly how this happens is agreed upon with the employment service agency. Some employers ignore or violate the procedure for dismissal due to staff reduction under Art. 81 part 2 of labor legislation. In this case, the employee may go to court with a claim for compensation for material and moral damage.

When can an employee be dismissed before the notice period ends?

If an employee wants to resign of his own free will.
If an employee is transferred to another position at the same enterprise.
If you have to fire someone for violating labor discipline.

Problems with dismissal due to reduction

Article 179 of the Labor Code on layoffs is causing controversy.

Due to some imperfections in labor legislation, namely clause 2, part 1, article 81 of the Labor Code of the Russian Federation, a situation has arisen that employers, in fact, have an unlimited right to terminate employment contracts. Controversy is caused by Article 179 of the Labor Code on layoffs, which states that employees with higher labor productivity have an advantage when retained. And the question of the benefits of keeping disabled people at work who received injuries and illnesses while defending the Fatherland or at a given enterprise is considered only when the disabled person has the same productivity as a healthy person. The situation is similar for people who alone support disabled family members. According to moral and ethical standards, such citizens should not be dismissed due to reduction, but this is not stipulated in the Labor Code of the Russian Federation.