How to fire an employee to reduce the position. Employee's preemptive rights to remain at work in case of layoffs. And even get additional compensation

You work for yourself, you work, and then again - the boss announces a staff reduction. Unfortunately, many have faced such a situation.

Many questions immediately arise that require clarification. For example, what should be the payments to the employee in case of layoff? What is the legal correct way to fire an employee? Is it possible to lay off pensioners, pregnant women?

Your position is no longer needed

One of the first questions that arise when an employee is laid off is: "What payments am I entitled to?" A similar situation occurs in both large companies and small ones. According to the law, the reduction must be announced at least two months in advance.

The employee must sign that he was notified on time. If the employee refuses to sign, then a special act is drawn up. If this rule is not observed, then the person can be reinstated in office. As soon as signatures are received, the company is obliged to offer new vacancies that correspond to the specialty of the employee.

When the two-month period comes to an end, the employment contract is terminated and payments to the employee are made in case of a reduction in staff. He is given an allowance in the form of an average salary. It remains for the period of employment (but not more than two months).

Reduction of an employee. Payouts. Labor Code

This topic is regulated by article 178 of the Labor Code of the Russian Federation. What she says:

1. An employee who has been laid off is paid an allowance. Its amount is equal to the average monthly earnings.
2. On the day of dismissal, the company is obliged to pay the entire salary debt to the employee. As well as compensation for unrealized vacation.
3. For sixty days after the layoff, the person is paid an average monthly income.
4. If he applied to the employment service no later than two weeks from the date of dismissal, but did not find the necessary vacancy, then by the decision of this body, the payment of compensation for the reduction of the employee is extended for another month.
5. The issue of money must be made on time, otherwise the dismissed person may challenge his rights in court.

More about amounts

So, what are the payments to the employee when the staff is cut? Firstly, this is financing in the form of an average monthly income. It is paid up to 60 days. Secondly, the allowance, which is issued immediately at the time of dismissal.

Thirdly, the manager is obliged to compensate all wage arrears, as well as unused vacation. Fourth, in special cases, an employee can be credited with a two-week average income. This applies to the moments when he does not agree to transfer to another service in the cases considered in the legislation. Also, payments to an employee in case of redundancy are made in connection with:

• calling him into the army;
• with the reinstatement of the person who previously held this position (withdrawal from the decree or appeal through the court);
• with the refusal to move to another area;
• with the recognition of him as incapable of work;
• with refusal to work due to changes in the terms of the contract.

Here you need to remember that personal income tax is not withheld from the mandatory amounts. The company is obliged to pay monetary compensation both in the event of the liquidation of the company and in case of violations in the preparation of employment contract(if they were admitted through no fault of the employee).

Collective and individual agreements preserve redundancy benefits. The timing of the issuance of all due money is limited to the last day on which the employee is still listed in the organization. If there was a delay in payments, then for every day they accrue interest at least 1/300 of the refinancing rate of the Central Bank of the Russian Federation.

Law violation

Fact illegal dismissal often found in everyday life. The employer wants to save his money and can play on ignorance of labor laws. Anyone who was laid off after collecting evidence of a violation of his rights can always sue statement of claim... Submission deadline - thirty calendar days from the date of receipt of a copy of the order of dismissal or issuance work book. Good reasons being late in contacting may increase the time it takes to accept a claim. Also, the reason for filing a lawsuit is the refusal to pay the percentage of delay due to the worker's compensation.

Conditions for "correct" contraction

If the manager decided to reduce the staff, then a number of rules must be followed:

1. The actual layoff of workers. The fact of dismissal is entered into the staffing table of the organization. An order is also issued to approve the new schedule.
2. Under Article 179 of the Labor Code, it is necessary to provide in writing a number of other vacancies corresponding to the qualifications of the employee.
3. Under article 180 of the Labor Code, the boss must notify the employee no later than two months before dismissal. The employee needs to sign that he was warned on time. Also, the manager approves the plan for communicating information about the reduction. In this case, a newspaper, a bulletin board, a meeting can be used.
4. The dismissal should be considered by a selective trade union body. It includes a lawyer, HR director, and a representative of the trade union committee. An order is also issued on the creation of the commission.
5. According to the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004, the head of the organization is responsible for confirming the legality of the dismissal and observing its order.

Who shouldn't be fired

Based on Article 261 of the Labor Code, a pregnant woman cannot be reduced. In the case of its work under a fixed-term contract, the enterprise is obliged to renew the agreement upon the expiration of this period. A woman will only need a medical certificate confirming her position.

But it can be reduced in the case when it was registered in the organization during the absence of the previous employee, and there is no possibility of transfer to another vacancy. Also, women who have children under three years of age and single mothers with a child under 14 or a disabled child under 18 are not subject to dismissal.

There is one caveat in the field of education. With regard to the reduction teaching staff educational institutions, this action is possible only after the end of the school year.

Useful subtleties

1. The calculation of payments in case of redundancy of an employee who is a part-time worker is not performed. The reason for this lies in the existence of a primary place of business.
2. A laid-off worker is eligible for early retirement benefits. Moreover, he needs to issue it no earlier than two years before the legal date.
3. If an employee has worked in the organization for less than six months, then compensation payments are still made for the unused vacation when the employee is laid off.
4. Severance pay is not subject to the uniform social tax, pension contributions, Personal income tax. As well as insurance premiums to the FSS. Compensation for unrealized vacation days is subject to personal income tax, but not UST.
5. If payments to the employee during the reduction are made not at the expense of budgetary funds, then they are taken into account in the composition of expenses going to salaries. Thus, the income tax is reduced (clause 9, article 255 of the Tax Code of the Russian Federation).
6. The employer can fire an employee without warning, while all payments must be preserved. An agreement of this kind, however, like all others, must be drawn up in writing. If the worker and the head of the organization have not come to an agreement, then the reduction should take place on a common basis.

Reduction of an employee. What payments are accrued? Calculation example

Let's give the following example. The employee began his career on 09/01/07 and was laid off on 04/23/09 (received a notification from his superiors). He quit on 24.06.09. For 12 months, the salary amounted to 126 thousand rubles. The beginning of labor activity in new organization- 05.09.09. Let's calculate the average earnings, the amount of the allowance and compensation for unrealized vacation.

So, what is the procedure for payments when an employee is laid off?

First, let's calculate the benefits owed. To do this, we divide the entire salary by 12 months and by the number of working days. We get an average earnings per day - 357.14 rubles. We multiply this figure by thirty calendar days and get 10714.2 rubles.

Secondly, we will calculate the amount that will be paid over several months. Since the employee in the first of them did not get a new job, the size of the severance pay goes towards the retained average income. In this case, the obligatory payment of average earnings is carried out during the second month. The amount of the benefit will be 11,071.34 rubles (average daily earnings are multiplied by 31 calendar days). For the third month, there will be no payments, since the employee got a job in a new organization.

Thirdly, we will calculate the allowance for unused vacation. Based on the fact that the employee worked for ten months, the compensation will be paid in 23.33 days. We multiply 28 vacation days by the number of months worked (10) and divide by their number in a year (12). Multiplying the resulting figure by the average daily earnings, we get the entire amount of payments - 8,332.08 rubles.

Early dismissal of an employee

Article 180 of the Labor Code says that employees of organizations are notified of the reduction two months before it. In the same article there is a clause in which it is written that the boss, in agreement with the subordinate, can liquidate the employment contract without waiting for the announced date. All payments for the early layoff of an employee are retained. But he will lose compensation if the basis for termination of the contract is a notice of dismissal by on their own... Thus, in order for an early reduction with all legal payments to occur, the following must be done:

1. The manager draws up an offer to the employee to cancel the employment contract before the official termination date.
2. The employee writes a written consent to this offer.

Compensation payments for the layoff of an employee are not made if the application states “I ask you to dismiss me of my own free will”. Or there is a letter from the new leader asking for a transfer to another organization. If the application states “I am asking to be dismissed due to the reduction of my position before the expiration of the term”, then the employer's consent will be required.

Going to court

Since it is beneficial for the employer to fire an employee of his own free will, the latter may be subject to psychological pressure. And this is a reason for going to court. Compulsion to write a statement will need to be proven. When considering a labor dispute, the court draws attention to the following points:

1. What are the reasons for writing the application - the employee's own desire or coercion.
2. What are the circumstances of its registration.
3. As far as is clear, the appeal is written, the presence of the necessary details in it.
4. What are the intentions of the worker.
5. What is the procedure for dismissal.

If the court recognizes termination labor relations illegal, then the manager is obliged to reformulate the grounds for dismissal, as well as to make all payments to the employee in case of redundancy. It is also possible to restore the previous position with monetary compensation for forced absenteeism.

Dismissal of an employee of retirement age

When reducing a retired employee, payments must be made as follows:

1. Compensation for unused vacations.
2. Benefit.
3. Maintaining average earnings for the period of employment for no more than two months. If the organization is located in the Far North, then up to three.

If an employee falls ill while looking for a new job

The employee has the right to submit a sick leave to the manager or to the territorial body of the Social Insurance Fund within thirty days from the date of termination of the employment relationship. Sick leave pay at the rate of 60% of the employee's average income.

Reduction under a fixed-term contract

According to Article 79 of the Labor Code, this type of contract is liquidated at the end of its validity period. The boss must inform the employee within three days and always in writing. Seasonal workers must be notified seven days in advance. They are also entitled to an allowance in the amount of two weeks' average wages. If the contract after the expiration date was reissued as an indefinite one, then the employee is subject to dismissal on a general basis.

"Dismissal on staff redundancy compensation 2018-2019"—one of the most popular search queries today. The reason is clear: the employer is free to make a decision to hold organizational staff events at any time, so the desire of employees to find out about the guarantees they are entitled to is quite justified. How the reduction procedure should be carried out, what payments are due to employees and in what amount they are provided - all this is detailed in this article.

Dismissal on staff reduction: features, stages and procedure

Optimization of the number of employees and staffing units of the enterprise, or reduction of staff, is a procedure that requires compliance with many norms labor legislation... It is carried out in several stages:

• making a decision on the reduction and issuing a corresponding order;
• notification of employees who are subject to redundancy, while offering them alternative positions;
• notification of the trade union organization (if there is one at the enterprise) and the territorial division of the employment service;
• direct dismissal of employees.

Issue of an order

A layoff order has nothing to do with a dismissal order. These are two completely different documents. The form of the order on holding organizational staff measures is not legally approved, but it must necessarily indicate the date of the upcoming termination of employment contracts and the list of positions subject to reduction.

Employee notification

Employees must be notified of the upcoming dismissal no later than 2 months before the date on which it is assigned by order. The notification is handed to each employee personally against receipt

As a rule, the same document contains a list of vacancies, which the dismissed employee, if desired, can take.

IMPORTANT!By virtue of Art. 180 of the Labor Code of the Russian Federation, the employer is obliged to offer employees alternative positions as they become vacant up to the date of dismissal. At the same time, it is allowed to offer not only equivalent or superior, but also subordinate positions. The main thing is that the working conditions on them correspond to the state of health of the employee.

Z The task of the employee upon receipt of the notification is to express his attitude towards the proposed position. In case of consent, a transfer will follow, in case of refusal - dismissal in accordance with paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

Union Notice

The trade union is sent information about all employees subject to dismissal, including those who are not members of it. Both the trade union and the employment service must be notified at the same time as the workers, that is, 2 months before the start of the layoff.

Who is not in danger of being laid off due to staff reduction

In the case of redundancies, the principle of fairness is fully observed. According to Art. 180 of the Labor Code of the Russian Federation, first of all, the most qualified employees remain at work, the level of labor productivity is higher than the rest.

All other things being equal, priority is given to employees who have 2 or more dependents (children or other disabled relatives), invalids of the Second World War and military operations, employees who have received an illness or injury during the course of work.

IMPORTANT! The Labor Code of the Russian Federation is not the only source that establishes the advantages when leaving the job. For example, according to Federal law dated May 15, 1991 No. 1244-1 "On social protection of citizens exposed to radiation as a result of the disaster on Chernobyl nuclear power plant»Chernobyl victims enjoy a similar right. Moreover, it applies both to the liquidators of the accident and to ordinary citizens who have received a dose of radiation.

In addition, for certain categories of workers, the law provides for "immunity" from dismissal for organizational staff activities. By virtue of Art. 261 of the Labor Code of the Russian Federation are recognized as such:

• pregnant women;
• mothers of children under 3 years old;
• single mothers raising children up to 14 years old or disabled children up to 18 years old;
• fathers (other persons) raising a child without a mother;
• the only breadwinners in a family with a child under 3 years old or with 3 or more children under 18 years old.

Compulsory redundancy payments (redundancy payments)

Employees who are dismissed due to staff reductions, as well as for other reasons, are entitled to receive full payment of wages and compensation for unused days vacation.

The procedure for calculating and providing payments is general. Everything that is due to the employee, he, according to Art. 140 of the Labor Code of the Russian Federation must be received on the day of dismissal or, if for some reason it is impossible (for example, due to the absence of an employee at work or due to a day off), on the next day or on the first working day after the date of dismissal.

Downsizing Compensation (Benefit Payment)

In addition to the mandatory payments provided to absolutely all dismissed employees, those who have been laid off are entitled to severance pay. Its size in accordance with Art. 178 of the Labor Code of the Russian Federation is equal to the amount of 1 average monthly salary.

Moreover, the average monthly salary is paid to the employee even after dismissal - until the next employment, but no longer than 2 months.

IMPORTANT! In exceptional cases, the law allows the payment of earnings for the 3rd month following the dismissal, but only if the required condition is met: if the downsized employee applied to the labor exchange within 2 weeks from the date of dismissal, but for objective reasons was not employed.

Additional compensation for layoffs due to redundancy

By virtue of Part 3 of Art. 180 of the Labor Code of the Russian Federation, the employer has the right to dismiss an employee for organizational measures ahead of schedule, that is, before the date on which, in accordance with the order on staff reduction, the start of dismissal is scheduled. However, this is possible only with the consent of the employee himself, expressed in writing.

In this case, the employee is entitled to additional financial compensation, the size of which is equal to the average salary for the period remaining until the official date of dismissal.

IMPORTANT! The appointment of additional compensation does not cancel the provision of severance pay and other payments due to the laid-off employee by law.

During the implementation of a number of measures to reduce staff or the number of employees, many issues may arise that need to be resolved in accordance with the procedure and conditions for dismissing employees. The most common questions are: how is an employee dismissed in connection with a job cut? How and what payments are made? What is the role of elected trade union bodies?

Dismissal of an employee due to job cuts occurs in a certain order

Indeed, dismissal due to job cuts is a complex process that occurs in a specific order. So, the main issues of staff reduction and release of employees.

Who determines the size of the staff and the structure of the organization?

According to general rules, the staff and structure of the firm are determined by the organization itself. Therefore, the staffing table can often change depending on the wishes of the manager, the need to cut costs or increase profits.

When resolving claims for the reinstatement of employees with whom the employment contract was terminated due to changes in the staffing table, the reasons for the reduction of the position are found out in court.

The same applies to whether the downsizing procedure was followed. Otherwise, the employee has the right to sue the employer.

The fact that the procedure for reducing the position was carried out in accordance with all the rules will be confirmed by the relevant documents:

• orders of the chief)
• orders)
• TD termination notice)
• extracts from the staffing table)
• reduction documents salaries.

This data will allow the court to figure out whether the staff reduction actually took place and what opportunities were provided to employees (vacancies or transfers, generous compensation payments, etc.).

Who is the first to be fired in the event of a layoff?

When a decision is made to reduce the number or staff of employees, before getting to the working people, it is necessary to eliminate the vacant positions. Only then can the reduction be made at the expense of employees.

It should be noted that the candidacies of employees to be dismissed for reasons of downsizing are determined by the administration with the participation of the trade union. The rules for dismissal of an employee from office must be carried out exactly in accordance with the legislation and the Labor Code of the Russian Federation. Each candidate must be considered separately. In this case, the opinion of the structural unit in which the employee works should be taken into account. Not everyone has a priority to stay at work

According to Article 34 of the Labor Code, they are left at work when the number of workers with higher qualifications and labor productivity is reduced.

Business and personal qualities... The right to assess the business qualities of employees is given to the head of the organization. At the same time, various information is taken into account that characterize them both from the professional and personal side:

• documents indicating education,
• data on work experience,
• work experience in this specialty,
• quality of performance of official obligations,
• belonging to a certain qualification group,
• incentives, awards, etc.

Also, the manager has the right to appoint a human resources specialist to assess employees. This will allow an unbiased judgment of employees and make choices in terms of professionalism rather than personal preference. So, the priority is given to such categories of workers:

• employees with a family)
• persons with dependents)
• family breadwinners)
• employees with extensive work experience in this organization)
• workers with work-related injuries received in this production)
• employees who improve their qualifications and work at the same time)
• invalids of the Second World War)
• inventors)
• family members of military personnel)
• people who have suffered from radiation sickness (victims of the Chernobyl accident).

These categories of people who have the preferential right not to be dismissed when redundant are absolutely equal. The state does not provide for other categories of beneficiaries. However, if the beneficiary fits into several categories, he has more reasons to stay at work than others.

According to article 40, part 2 of the Labor Code of the Russian Federation, during the release of employees due to staff reductions, the benefits provided by the collective agreement, if any, may be taken into account. It should be noted that this right can be exercised after the administration has considered all preferences for staying at work.

The reduction of positions is carried out in order to optimize the work of the organization and more rational staffing of qualified personnel. That is why the administration is trying to choose best workers to keep them with the organization.

If there are grounds for reducing the position and the order is signed, a valuable employee can be transferred to another vacant position. So, according to the decision The Supreme Court RF, the administration, in the event of measures to reduce the staff, can carry out the reshuffle of employees within homogeneous positions in order to leave a more qualified specialist working. However, since 1998, there has been a law according to which it is impossible to dismiss an employee on reduction if his position is retained in staffing table.

Who is forbidden to fire?

Labor Code considers the reduction of the position as completely legal. However, it should be borne in mind that not all employees can be easily fired. Thus, pregnant women, as well as employees with children under three years of age, cannot be considered candidates for dismissal. Employees with disabled children, single mothers with young children are also not subject to dismissal. Some other categories of employees cannot be dismissed in accordance with article 170 of the Labor Code of the Russian Federation. It does not matter whether these persons are on vacation or work during the period of the downsizing.

The exception is the complete cessation of the existence of the company. In this case, all employees are subject to dismissal, regardless of the availability of privileges and rights.

Dismissal as a result of a reduction in the number of employees or staff can be carried out in the event that the employee to be fired does not have the advantage of being retained in the position in comparison with other employees, with the same productivity and qualifications. Also, an employee is subject to dismissal if he is laid off, if he cannot be provided with an alternative place of work.

Translation or employment opportunities

After the candidates for layoff have been considered, the list of employees to be laid off is drawn up, the administration must offer the employee to take another vacant position in case of layoff. According to article 40 of the Labor Code of the Russian Federation, the employee must be offered another job simultaneously with the notification of falling under the layoff and the upcoming dismissal. Also, no later than a couple of months in advance, the administration is obliged to inform the employment service about the dismissal of employees. In this case, it is necessary to submit data for each employee, indicating:

• specialties,
• profession,
• qualifications,
• position held,
• the amount of payment.

Simultaneously with the employment center, it is necessary to notify the trade union of the mass layoff.

The form of the order on the reduction of the position must be prepared. After that, all employees should be notified by placing an announcement on the stand. Whether workers are laid off or not, they need to be aware of the upcoming layoffs.

Each employee is individually warned against signature about the upcoming dismissal two months earlier. In case of refusal to sign a paper with a warning, the boss or the administration draws up an act with the signatures of witnesses, which will record and confirm that the employee is familiar with the document.

The administration can notify the employee about the upcoming payment during his illness or vacation, however, the employee can be fired only after he returns to work. After the warning of dismissal, the specialist is obliged to work for the remaining two months in compliance with all the rules internal regulations... In case of violations labor discipline an employee can be dismissed earlier on an article “unfavorable” for his future career.

The terms of the notice of dismissal are set in the interests of the employee, so he can apply to the administration to shorten the term if he has found another job and wants to start performing his new duties. If the administration does not insist that the employee continue to perform his duties, he can be calculated ahead of time upon application with the provision of all guarantees and compensation payments.

It should be noted that the application for early dismissal must be drawn up correctly. Otherwise, the employee may be dismissed "of his own free will" and deprived of all the privileges that are due to him.

If the dismissal of an employee on vacation falls on the day of his absence, then he may be dismissed later, when he arrives at work at the end of the sick leave or health leave.

Dismissal on reduction of position

If the available positions are not offered upon dismissal, it is imperative to draw up an act indicating the absence of alternative vacancies. Otherwise, the employee may challenge the legality of his dismissal in court. It is also necessary, if possible, to provide a transfer to another city for a similar job or offer all vacancies, including those that are below the qualification level of the employee or have a lower pay.

Only after the employee refuses to take advantage of the boss's suggestions, it should be calculated. It should also be noted that all vacant positions should be submitted to the employee for consideration in order to avoid problems in the future.

The most optimal option for dismissal in case of redundancy is transfer to another place. When the position is reduced, the conditions of dismissal do not allow leaving the employee, since otherwise he will have to take the place of another person, which is not legitimate. Although earlier the law provided that the administration could leave employees with the highest qualifications and productivity in the organization and form a staff from them, now these actions are illegitimate. Employees should be aware of all changes in the staffing table.

If there is no translation option

The rules for the reduction of an employee from office must be carried out exactly in accordance with the legislation and the Labor Code of the Russian Federation

Dismissal under article 33 of the Labor Code of the Russian Federation is possible only if it is impossible to transfer or if the person does not agree to work in another place. The contract was concluded between the employee and the organization, so all vacancies should be offered that are available in the organization, and not only in the structural unit where the employee worked.

It is worth noting that the employee has no right to demand any position that interests him in this organization. During the conclusion of the TD, he entered a job corresponding to his education and qualifications. Based on this, he can be offered a position corresponding to the qualifications.

In the absence of suitable vacancies, the administration is obliged to present the employee with a lower-paid job in his specialty. The management is obliged to select and offer the dismissed employee a position during the entire period from the warning of the reduction to the day of calculation. In the event that the case comes to court burdens, and it turns out that the administration did not offer the employee an existing suitable vacancy, the dismissal will not only be recognized as unlawful, but the organization itself will have to pay the plaintiff:

• legal costs)
• compensation for moral damage)
• money that could have been his wages in an unsolicited position.

The role of the union

This body protects the rights of workers and monitors the legality of the actions of the administration in relation to him. Representatives of the trade union committee answer questions on job reductions and dismissals on staff reductions, and also check whether the article under which the employment contract is terminated in these cases coincides.

An employee can be dismissed only with the permission of the trade union body. This rule applies to union members. This body does not have the authority in case of dismissal:

• the head (head) of the organization or branch)
• deputy chief)
• senior staff)
• elected workers)
• persons approved or appointed state power(governing bodies) and public organizations.

If the trade union body does not allow the dismissal of the employee, then this decision is brought to the knowledge of the administration. Further, the trade union committee will consult with the company's management, as a result of which either the employee will be left at work, or the case will be decided in court.

Last day of work

On the day of dismissal, the manager is obliged to give the employee a work book. The dismissed must fill out forms, which will later be transferred to the archive. In the event of a delay in the issuance of labor due to the fault of the administration or the chief, the employee will receive compensation in the amount of the average earnings for the period of "truancy", in accordance with Articles 39, 98, 99 of the Labor Code of the Russian Federation.

If the delay in issuing the labor book (the employer's fault) is associated with unwanted consequences for an employee, he has the right to demand from the administration of the institution to change the date of dismissal. In case of refusal, the employee can go to court.

Compensation

What is paid upon dismissal to reduce the position? First of all, as in any case, the layoffs must be paid the estimated. They consist of the following components.

All guarantees and compensations are provided to the employee in accordance with applicable law. At the same time, the reason for the reduction does not matter at all:

• decrease in the number of employees)
• staff reduction)
• there was a reorganization as a result of a merger of firms or a merger of branches, etc.

In case of termination of the contract between the employee and the manager due to the reduction of the position, the employee is entitled to the following payments:

• maintaining the average salary for the period of employment (no more than two months))
• salary for the third month without work, in case of dissatisfaction with his request for a job search by the employment service)
• other material compensation.

Payment of settlement money is carried out at the place of employment. It is provided upon presentation by an employee of a work book. In order to receive material payments in the future, it is necessary to register with the employment service as temporarily unemployed. If the break in work has not exceeded three months, the employee retains the right to receive continuous work experience.

The form of notification of the reduction of the position is a mandatory element of any reduction

If the laid-off worker contacted the employment service on time, he can count on an extension work experience further, for the period of receiving a scholarship or unemployment benefit when performing paid public works.

Maintaining continuous work experience is important for a person who wants to find a job. In addition, it is this indicator that will determine the amount of payments in connection with unemployment. This can help in the future with remuneration (percentage allowances, lump sum remuneration for seniority, etc.).

If a dismissed employee, when contacting the employment service, was denied assistance, then he can be assigned an early retirement pension (only with his consent). It is appointed on the condition that the employee has the required length of service for retirement due to old age (this also includes receiving preferential payments as a supplement to the pension). The employee is guaranteed, even after dismissal, that the queue for housing and the opportunity for his family to use children's and medical institutions is guaranteed.

Allowed vacation or its material compensation

It should also be remembered that in case of dismissal due to a reduction in position, the employee has the right to spend the leave prescribed by law. If the director cannot provide the dismissed employee with leave, this will have to be settled financially. So, the first step is to provide compensation in the form of a material bonus corresponding to the amount of vacation pay.

During the vacation period, "wellness" allowances are accrued, so the employee can receive partial cash payments. It should be noted that dismissal implies unemployment in the future, therefore, material compensation in the amount of average wages within two months will also be provided.

First of all, it is worth understanding the difference in the concepts of "dismissal" and "reduction". The first has a wider application and is regulated by Article 81 of the Labor Code of the Russian Federation. In fact, any incompetent action of the employee or a forced decision of the management can be the reason for dismissal. Therefore, it is produced on a voluntary basis or "under the article."

The layoff is one of the reasons for dismissal. In this case, a corresponding entry is made in the work book. This method of dismissal is not always forced. Many managers in this way get rid of unnecessary or objectionable subordinates, subsequently drawing up a new staffing table with the same positions, but with a different salary, so it is very important to know the answer to the question of what to do when you are laid off at work.

Important! Each downsized employee is notified by means of a written document no later than 2 months before the intended action (Article 180). In this case, the employee has the right to personally terminate the contract earlier than the allotted time, with receipt of compensation for the unworked period (Article 178).

Review the rules of procedure and employee rights

Find out if there is an advantage for leaving or conditions prohibiting termination of the employment contract?

characterized by labor productivity and qualifications. This takes into account the data of qualification attestations, education, professional achievements(private bussiness). If this data is not enough for the commission to make a decision, then the preference to retain the position is assigned to the persons specified in Article 179.

When should you start looking for a new job?

It is recommended to search for a job simultaneously with registration as an unemployed person. In his free time from interviews (in the direction), the dismissed employee makes every effort to find the best option earnings.

Do I need to get up at the labor exchange?

If the dismissed employee wishes to receive monthly payments that he relies on legal grounds, follows. If an unemployed person does not find a new job within 2 months, funds from the previous employer are transferred to him as compensation (monthly).

Receiving the third payment is possible upon contacting the exchange within 14 days from the date of the order of dismissal and upon request of the labor exchange inspector. The latter payment is difficult due to legal requirements.

Any of the compensation is canceled in the process of discovering an additional source of income from the unemployed.

What happens when you disagree with quitting?

1. Conclude an amicable agreement at the place of work directly with the superiors.
2. Write a statement to the Labor Inspectorate (LIT), the Prosecutor's Office or the Court.

In the presence of obvious violations of the rules, it is sometimes easier to contact the labor inspectorate than to wait for a court decision. She has the necessary powers to resolve the issue in the pre-trial order (administrative responsibility). For compensation, the injured party applies to the courts and proves the illegality of the actions of the company's management.

The ability to recover

• through the GIT with a complaint;
• through the Court with a statement of claim.

If the issue is positively resolved, the employer undertakes not to interfere with the work of the reinstated employee, and the latter, in turn, to perform labor duties in accordance with the instructions (from the day following the day of the decision).

How to punish an employer - contacting the GIT?

The grounds for contacting the GIT may be:

• untimely notification of the termination of the employment relationship;
• violation of the rules for dismissals;
• incorrect calculation of payments;
• payment of compensation not on time;
• no work book provided.

The complaint is made to the email address of the inspection unit (for the constituent entities of the Russian Federation) or through a personal expression of will.

The application indicates:

1. Full name of the employee;
2. full name of the employing organization, its TIN, legal address;
3. position and data of the employment contract, terms of work and qualifications (position);
4. description of violated rights with references to legislation (specific articles that were violated);
5. date and signature.

The complaint is accompanied by a copy of the passport, employment contract, as well as documents confirming the violation (if possible):

1. photographs, audio / video materials;
2. written evidence;
3. contacts of colleagues who are ready to confirm the specified information.

It indicates:

1. complete information about the plaintiff and the defendant;
2. the essence of the application with the requirements (reinstatement, compensation, etc.), references to laws;
3. the essence of the violation of rights and evidence;
4. the amount of the claim with assessment and calculations.

Attached to the application:

• copies of the passport;
• receipt of payment of state duty;
• documents from the place of work, confirming the illegality of the actions of the official.

To substantiate the claim, it is necessary to obtain copies of the order of employment, employment contract, order of dismissal, staffing table, protocols and acts, salary certificate, etc. In some cases, prior contact with the GIT facilitates the dispute settlement process. since they are empowered to carry out on-site inspections, unlike private individuals.

The court may require the defendant to:

• fulfill the requirements of the plaintiff;
• pay legal fees and attorney fees;
• pay moral compensation and the amount of lost profits as a result of unlawful "time off";
• restore the plaintiff's labor obligations;
• answer on the legislation on administrative offenses;
• stop working for a certain period.

By a court decision, the defendant must comply with the requirements of the law immediately. in terms of reinstatement. The rest of the requirements are binding within 13 days.

Assumes compliance with a number of sequences of actions regulated by the state. In cases of unlawful decisions due to carelessness or arbitrariness, the official is liable under the law.

Useful video

From the video you will learn what an employee needs to know if he fell under a layoff:

The market economy and freedom of entrepreneurship made the owners and management of companies responsible for all risks that may lie in wait for a commercial enterprise in its activities. The influence of volatile demand, internal financial and organizational problems, the general state of the economy can bring an enterprise close to the need to reorganize the team, layoffs to reduce staff, and even decide to liquidate its own company. How this issue is regulated in 2019, we will tell in this material.

One of the most difficult decisions is the optimization of the staff and the number of employees, or reduction. The management may limit itself to reducing the number of specialists of a certain orientation, and possibly eliminate whole structural units or affiliates. If all specialists are dismissed and the position in the staffing table is abolished, then we are talking about staff reduction. If the number of employees in one position is reduced, then a reduction in the number of employees is implied. The complete liquidation of an enterprise implies a reduction in both the staff and the number.

Reduction in the number of employees - a decrease in the total payroll number of employees in the enterprise or within one position. Reduction of the staff - cutting the list of positions in the staffing table and the dismissal of all specialists in this area.

Layoff on staff reduction - step by step instructions

This instruction will help you understand exactly how the layoff process occurs when reducing staff at the enterprise.

Decision on restructuring or liquidation

The meeting of founders or shareholders discusses the need to change the direction of activity or to take measures to optimize costs, including for salaries. The presence of a protocol with a collective decision and its rationale will help in the future to prove that there was a real need for the staff reduction and it was carried out for real reasons.

Development and approval of an updated staffing table

The changed organizational circumstances are forcing the management to reconsider the required number of specialists. If it was decided to change the type of activity, then completely new positions will appear in the list of positions and irrelevant ones will disappear without a trace. For example, a fabric manufacturer decided to stop making its own products and instead start a trade in purchased accessories. Then the position of "Weaver" will disappear from the regular one, but the vacancy of "Seller" will appear.

When the company is liquidated, this stage is not necessary, because as a result there will be a reduction in both the number and the staff. The same applies to closing detached branch companies.

Comparison of the number of specialists in the old and new editions of the staffing table

It will help determine the number of people to be fired, and will also help to prove that the reduction was valid.

Making a decision to reduce the number or staff

A separate order on the inevitable need to lay off workers without specifying the names and dates of the proposed dismissal will leave the management room for maneuver in case of illness and vacations of the laid off employees. It is better to approve a specific list of specialists collectively and formalize their dismissal by orders in the T8 form. Of course, a small enterprise can limit itself to the sole decision of the head, but if the team is larger than average, then it will be more useful to create a commission and hold a vote.

Determination of the circle of employees to be laid off, as well as those who have the primary right to stay (Article 179 of the Labor Code of the Russian Federation). At the same stage, it is better to agree on the list of candidates with the trade union cell or organization.

Employment authorities notification

Notify about the expected release with details by position, working conditions, salary. The notification form and procedure are set out in Law 1032-1 and Resolution No. 99. It must be remembered that it is better to carry out all the previous procedures in advance, because it is necessary to submit the Information on the released workers at least 60 days before the actual dismissal. If an enterprise with more than one and a half dozen employees is liquidated or more than 50 workers are laid off within 30 days, two hundred - in 60 days and five hundred - in 90 days, then this will be considered a mass release. Then the Information is sent to the employment authorities three months in advance (Appendix 1, Resolution No. 99). In the event of the liquidation of an individual entrepreneur, the law allows information to be submitted 14 days in advance.

Warning workers

Warning of persons from the approved list about the upcoming dismissal on the basis of clause 1 or clause 2 of Art. 81 of the Labor Code of the Russian Federation (abbreviation).

The notice of redundancy must be handed in personally and against a handwritten signature. Here, too, one must not be late and inform the employee about the sad news no later than 60 calendar days. Abbreviated at this moment, it may well be on the next vacation or on the newsletter. Since according to Art. 125 of the Labor Code of the Russian Federation, vacation can be interrupted only with the consent of the employee, it is unlikely that it will be possible to do it personally.

You can try sending the document by mail or telegraph. Then the date of the actual receipt of the letter will be considered the date of the warning. There is a risk that the addressee will subsequently refuse to sign in receipt of the letter or telegram or declare that no one has given him anything. You can send a commission from the enterprise to the employee and try to transfer the document to him at home. The main thing is that this does not acquire a scandalous connotation, and the employee does not regard this as a violation of his right to privacy and rest. Therefore, it is better to postpone the delivery, and after waiting for his return to work, do everything during working hours.

If a person refuses to receive timely notification in his hands, then this fact must be confirmed in the presence of two disinterested witnesses.

Offer new vacancies

If a partial reduction is planned, then the company may have vacancies in other departments and divisions. They are to be offered to those who have been warned of reductions, v. 180 of the Labor Code of the Russian Federation. The primary condition in this case, the qualifications and health of the transferred employee must be sufficient and satisfactory to perform the proposed duties. For example, if an accountant is laid off in a hospital, then you can offer her the vacancy of a secretary or typist, but it is illegal to offer the position of a doctor or nurse, even if they are vacant. Although, perhaps, a person has an education that he did not consider necessary to report to the personnel department, and an option completely unexpected for the employer will suit him.

The Labor Code does not prohibit the offer of less paid work or a lower position. Usually, the employee is presented with a list of all vacant positions in the company, even those at a remote distance (of course, if this line is written in the collective or labor agreement).

Transfer of employees to new vacancies

The agreement with the employee will serve as a pretext for issuing an order for the transfer to the new position offered to him. If it is already in the staffing table, the order and the contract can be signed before the expiration of the warning period.

The worker can change his mind and withdraw his consent at any second before the date of the actual transfer. However, if to new job he nevertheless proceeded, then it is possible to resign from her only under Art. 80 of the Labor Code of the Russian Federation, then it is no longer worth hoping for severance pay upon dismissal due to staff reductions.

Issuance of a dismissal order in order to reduce the rest

For those who have decided not to continue working in the company in a new capacity, it remains only to prepare a dismissal order for redundancy.

Calculation, payment of benefits and compensations

Labor legislation guarantees the following payments to employees:

1. Article 178 of the Labor Code of the Russian Federation provides for severance pay upon dismissal due to staff reductions in the amount of the average salary for one month. When calculating it, you need to be guided by Decree No. 922.
2. prescribes to calculate and pay the downsized employee compensation for the accumulated, but unused, days of earned annual leave(minimum recorded 28 days + possible additional days).
3. Part 3 of Art. 180 of the Labor Code of the Russian Federation, early separation from an employee who has been previously warned of redundancy is allowed. The working days remaining before the initial date of dismissal must be paid on the basis of the average earnings calculated in accordance with Resolution No. 922.
4. It is compulsory upon dismissal that the earned in the current working month is paid. Calculation is carried out on the basis of salary or tariff rate additional payments and bonuses established in the company in proportion to the hours worked (Article 135 of the Labor Code of the Russian Federation).
5. According to parts 1 and 2 of Art. 178 of the Labor Code of the Russian Federation, the released employee retains an "average" earnings for the search period suitable place, but only if he does it in an active way. Proof of this will be its registration at the labor exchange in the next two months after the dismissal. Then he will be able to reasonably count on material support from the previous employer for the first two months, and at the request of the employment service, and three. Such help is expressed in the payment of the average salary for a specified period.
6. Other payments and benefits stipulated in the local documents of the company (for example, a collective agreement).

Before issuing money to the employee's hands, it is necessary to familiarize in writing with the composition of the accrued and withheld amounts (Article 136 of the Labor Code of the Russian Federation).

Issuance of work books on the day of calculation

On the last day worked, the person being dismissed must receive in his hands all the material payments due to him and the completed labor, Art. 140 TC. You also need to remember to write him a certificate of salary and insurance payments and charges for two full years and for the current period. For example, upon dismissal due to staff cuts in April 2019, a salary certificate is issued for the full 2017-2018 years and for January-March 2019.

For those who plan to apply to the labor exchange for help in finding a job, a certificate of the average salary for the last quarter of work is issued. In addition, at the request of the dismissed, he must be given copies of all personnel documents that related to the period of his work at the enterprise.

What to do with the category of "dismissals"?

In the process of selecting candidates for dismissal for redundancy, the employer is forced to reckon with the requirements of two main articles of the Labor Code of the Russian Federation.

When the number of employees is reduced within one position, the listed employees cannot be removed from their place at all. When reducing staff and abolishing a position, you can try to negotiate a transfer to another. The main thing is to get the voluntary consent of such an employee. Most often, for this it is enough to maintain the level of wages and some significant labor guarantees (length of vacation or working conditions).

This category of workers receives only an additional argument in favor of leaving their jobs. If, at the same time, they do not have sufficient experience or make mistakes in their work, then the employer may prefer a more responsible employee to them.

Article 179 of the Labor Code of the Russian Federation does not contain a direct prohibition on the reduction of the listed employees. It only draws attention to the categories of qualified professionals who work in good faith, who, in the opinion of legislators, deserve additional labor guarantees.

How to calculate the payroll due in 2019?

Severance pay

The calculation is carried out taking into account the provisions of Resolution No. 922. For this, all payments related to the wage fund for the previous 12 fully worked months are summed up. The average daily rate is determined by dividing the resulting amount by the actual number of days worked. Then, to determine the size of the severance pay, this value will need to be multiplied by the calculated number of working days in the calendar month following the day of dismissal. If the employee's salary was calculated according to the summed up time, then it is necessary to calculate the average hourly rate for the previous year.

In case of detection in the working period of the shortened days that do not fall into the calculation (clause 5 of Resolution No. 922), it is necessary to exclude from the amount of income and the amount of payments for the specified period.

Compensation for unused vacation

You also need to calculate compensation on the basis of Decree No. 922. The only difference in the calculation is that the amount of annual income must be divided by 12, and then by another 29.3 to determine the average daily calendar rate of the employee. Accordingly, the result is multiplied by the number of calendar days of unchecked leave.

Average retained earnings for the period of looking for a new job

Such a payment is made only if a person is registered in the status of an unemployed, but its term will not exceed 3 months. It is calculated in the manner described in clause 9 of Resolution No. 922. The transfer is carried out according to the data of the employment center on the process and prospects of new employment. There is one peculiarity in the process of paying salaries for a difficult period of job search, the amount of the severance pay issued on the farewell day of work is deducted from it. Severance pay is calculated based on the number of working days in the period (clause 9 of Resolution No. 922), compensation for unused vacation - based on calendar days (clause 10 of the same Resolution).

How to issue a labor certificate?

V labor worker, traditionally, literally transfer the wording inscribed in the order of dismissal. In the column where data on admission, transfer or dismissal are entered, the entry is made: "Dismissed due to staff reduction / liquidation of the enterprise." Depending on the reason for the reduction, the paragraph of the first part of Article 81 of the Labor Code of the Russian Federation is also selected. Reduction of staff or number - paragraph 2, complete liquidation of the organization - paragraph 1.

The employee agrees to leave early

On their own initiative and guided by internal reasons, the employer may offer the specialists warned about the reduction to leave ahead of time. After all, the notification of the impending staff reduction does not add enthusiasm to the employee at work, and the new position may turn up faster than the expected date. Therefore, a person can express a willingness to speed up the process by early dismissal (part 3 of article 180 of the Labor Code of the Russian Federation). The law prudently obliged the employer to pay the days remaining until the date set in the notice according to the average earnings. To do this, the employee must submit a statement to the management himself and please him that he is ready to compromise.

Sometimes an employer is tempted to take advantage of a person's legal awareness gaps. Then the warned about the reduction is offered to sign a statement with a personal request to fire him without working out the remaining period. A document signed with this wording gives the right to believe that the employee has decided to terminate the employment contract under Art. 80 or Art. 78 of the Labor Code of the Russian Federation. And this, almost guaranteed, deprives a person of most of the cash payments and material support during the period of attempts to subsequent employment.

A correctly drawn up statement should express the main idea: the employee has been notified of the date of the upcoming reduction, he refused to occupy the vacant positions offered to him, therefore he agrees to the previously proposed early dismissal in the order of staff reduction. Additionally, it must be indicated that a person expects to receive all the required benefits and compensations in accordance with all parts of Articles 127, 178 and 180 of the Labor Code of the Russian Federation.

Article 180 of the Labor Code of the Russian Federation invites the employer to early dismiss the employee with his consent, but does not oblige him to do this if the employee himself declares this unilaterally.

The final list of documents for the employer

In order to avoid problems in potentially possible labor disputes, after the successful completion of the downsizing procedure, the employer must have the following documents on hand:

1. Minutes of the meeting of participants.
2. An order on a new staffing table with an effective date after the dismissal of the laid off employees.
3. The order to abolish the "old" staff.
4. The act or minutes of the meeting of the commission for the approval of candidates for dismissal in the order of reduction.
5. Written union consent or recommendation.
6. A copy of the Information submitted to the employment service.
7. Originals of Reduction Notices for each employee with their personal signature or Certificate of Denial of Receipt, certified by witnesses.
8. Written consent or categorical refusal of the proposed vacancies for each employee, on which their opinion and signature are personally written.
9. An order to transfer to a new field or dismiss selected employees.
10. A document with a handwritten list, confirming familiarization with the list of charges and payments, a list of receipt of labor and other personnel documents.

The package of papers is impressive, but the absence of any of the above can be costly for the employer if the employee perceives his dismissal as illegal, and his claims are supported by the supervisory authority or the court.

What is an “invalid” abbreviation, or how to avoid a labor dispute?

The Labor Code does not directly oblige the employer to explain to someone the reasons and justifications for the layoff of employees. However, the frequency of occurrence of labor disputes and arbitrage practice decisions on the basis of their consideration are still called upon to be prepared for hard-hitting questions. If the company really decided to reorganize or radically change the profile of its activities, then you need to stock up on evidence in advance. After all, a dismissed employee may not agree with the reasons for his reduction and will go to seek the truth in court.

Unscrupulous employers can take advantage of the opportunity and get rid of some employees by simply renaming a department or position, while simultaneously recruiting new specialists. For example, to disband the sales department and lay off all managers, and in parallel, create a sales and product promotion department and hire sales specialists. Managers who have been made redundant according to this scheme, who are not admitted to the newly created unit, can go to court and get reinstated at work there. The employer, on the other hand, will be obliged to compensate for financial damage due to forced absenteeism during the period of proceedings, from the moment of illegal dismissal, and in addition, moral damage.

Another mistake is the restoration of old positions a few months after downsizing or an increase in the number of specialists in optimized departments. Such short-sighted actions of the management can also become the basis in court for the reinstatement of dismissed workers. Even if you change the names, change the list of labor functions and the level of workload. If the qualification requirements for hired employees remain the same, then the court may consider this a default on the employer's obligation to employ the released employees and find suitable vacancies for them.

Moreover, the enterprise that carried out the reduction of staff, with the subsequent restoration of the number of the same specialists, will be obliged to submit to the employment authorities information about the vacancies that have appeared. Then there may be a situation uncontrollable by the employer, and the previously laid off employee, registered as unemployed, will be sent to his old employer. Firstly, it will be quite difficult to refuse such a job seeker. Second, a legitimate question may arise as to the rationale for the initial reduction. The court can admit doubts too former employee reasonable.

It is also worth considering that after the issuance of the order on the inevitability of the upcoming layoffs, suspend the recruitment of outside employees to vacant work points. At least until there is clarity on the issue of transfers and employment of the released workers of the company.

Although the Labor Code does not oblige to explain the reasons for staff reductions, it should nevertheless be carefully prepared for its justification. In the event of a labor dispute, the employer will be forced to prove that the procedure was actually carried out and not fictitious.

Complete liquidation of the enterprise: how to reduce the number and staff?

The decision taken by the owner of the enterprise or the entrepreneur to completely liquidate and terminate the commercial activity releases the employer from the need to comply with only one restriction. Such an entity has no obligation to worry about the transfer and employment of "special" employees. The relevance of registration of some documents confirming the validity of the reduction disappears.

Otherwise, the procedure for carrying out this procedure does not differ from that described. I am glad that even under such circumstances, the dismissed employees will not suffer financially, they will receive all compensation payments prescribed by the legislators without cuts and delays.

Question answer

The downsized employee has accumulated vacation days, and he wants to issue a dismissal only after using his vacation. Is it possible to simply pay compensation and oblige to work before the planned layoff date?

Obligations to provide the employee with vacation before the date of termination labor contract the employer does not. Moreover, it would be reckless to send a downsized employee on vacation if the number of accumulated days exceeds the duration of the downsizing warning. After all, dismissal under Article 81 of the Labor Code during the period of annual rest is not allowed. So the publication of the order of dismissal will have to be postponed until the end of the rest.

Although, the employer can go for this option if he can do all this time without a leaving specialist. One of the advantages will be the ability to save money on compensation for unchecked time.

The employee went on sick leave on the last day before the end of the warning period. How to carry out a dismissal?

The employer is powerless to reduce even a timely warned employee during a sudden illness or taking leave of absence, this is prohibited by part 6 of Art. 81 of the Labor Code of the Russian Federation. It will be possible to complete the dismissal procedure only at the end of the period of incapacity for work; you can issue an order on this on the day you appear at work after recovery.

Does the “who came later” rule work?

There is a belief that “old” employees can feel safe and not be afraid of layoffs. It can only be supported by high qualifications, many years of conscientious work in the company, praise from the management on the corresponding pages of the work book and the absence disciplinary action per Last year... If they cannot boast of production success, then a long work experience is not the strongest argument in favor of the priority right to continue work. At least Art. 179 of the Labor Code of the Russian Federation does not imply such a guarantee.

The department employs a disabled person and a pensioner with 30 years of work experience and higher education in their specialty. Whom to cut?

The positions of the employees should be compared. If the employee's disability is due to a general illness. and did not happen at this enterprise, then he does not have an advantage over a pensioner. Moreover, both employees have a guaranteed income in the form of a pension, so the decision to keep one of them in office will be made only on the basis of qualifications and productivity indicators (Article 179 of the Labor Code of the Russian Federation). The first criterion is the availability of special education and work experience. Next, you need to evaluate the quality and completeness of performance job responsibilities... One of the arguments in this comparison will be the calculation of the number of days of disability for each of the applicants, as a characteristic of productivity.

The position of each of the employees may evoke human sympathy, but the law does not distinguish between them and does not give an advantage. The employer will have to make the final choice using general provisions Labor Code.

Can they cut external part-time without warning and paying severance pay?

An external part-time worker at an enterprise is often perceived as an outsider. Nevertheless, a specialist working for several employers is an equal participant in the labor process, which means that the Labor Code guarantees him the same protection as for full-time (main) employees. When downsizing, a part-time worker must accept the fact that he cannot count on receiving financial support from his native enterprise while searching for a new part-time job. The problem is that such a payment is due to those who will be recognized as unemployed in accordance with Article 3 of Law No. 1032-1 (an able-bodied person without a stable source of income). An exception was made only for a part-time worker who had lost his main place by the time of reduction.

Lawyer of the collegium of legal protection. He specializes in handling cases related to labor disputes. Defense in court, preparation of claims and others normative documents to the regulatory authorities.