Reduction procedure step by step. What is the procedure for dismissal due to staff reduction? Order and procedure of reduction
You must notify the trade union and the employment center
The trade union organization, if there is one at the enterprise, must be notified of the upcoming staff reduction 2 months in advance, and if this dismissal becomes massive, then 3 months in advance.
The trade union must send its response within 7 days, otherwise it will not be accepted and taken into account. According to the same algorithm, you need to notify the employment service.
Drawing up an order for the dismissal of employees
In order to finally initialize the dismissal of employees, you need to write and issue an order that will correspond to the T-8 form. In the line "Reason for dismissal" you need to indicate "reduction of the company's staff." Such an order must be signed by the head of the enterprise and all employees who are laid off. Make appropriate entries in the work book of employees.
In the work book, you must make an entry in which to motivate the dismissal in accordance with the Labor Code of Russia. For example, in this case, “Dismissal due to a reduction in the staff of the enterprise in accordance with paragraph 2 of Art. 81 of the Labor Code of the Russian Federation.
Make an entry in the work book registration book and in the individual employee cards.
Payment of redundancy benefits
In connection with the dismissal of an employee due to a reduction in the staff of the enterprise, the employee is entitled to payments. In order not to pay them, the employee is trying in every possible way to persuade, influence, or even intimidate the employee so that he writes a statement of his own free will, because in this case you will not receive any financial assistance.
If an employee was fired due to a reduction in staff, then he must be paid a severance pay, which is equal to one average salary per year. In addition, the average monthly salary is paid until the next employment, but not more than 2 months.
Rights and obligations of the reduced employee
Even with a reduction, the employee has the right to many things that you should know about in advance and use your opportunities. These include:
But, in addition to rights, the employee also has certain duties. Even if you already know that you will lose your job in a few months, you must perform your job duties clearly, on time and correctly. Otherwise, management still has the right to fine you. It is better to spend your free time looking for a new job.
Dismissal due to redundancy - compensation
After the management issued a decree on the reduction of workers, in which there is a mention of "with the payment of severance pay" to employees who are left without work, they must pay monetary compensation. At the same time, the order itself must be drawn up absolutely correctly, indicating the full reason for the reduction and the article of the Russian Federation, following which you are acting.
Severance pay is paid in order to support the former employee for the next period of looking for a new job.
It is very important to correctly determine the amount of the payment for the reduction. To do this, you need to take the full salary that the employee received over the past year. And divide it by the number of working days in a year. This is how you get paid per day. And then multiply the daily earnings by the number of days in the month that comes after the dismissal of the employee. In addition, the company covers insurance payments and guarantees. It is in order to save their own money and free themselves from responsibility that many employers are trying to convince employees to write. In this case, neither compensation nor insurance will be paid to you.
In addition, the employee who is subject to dismissal is entitled to the following payments:
- Salary for the month he worked before his dismissal.
- If the employee was not on vacation in the current ode, then he is entitled to compensation.
- Severance pay, which is paid in all cases.
- Average salary for the last year of work in the organization.
Features of paperwork
But quite often there are situations when the execution of a standard package of documents is not enough, some controversial situations arise.
Let's look at a few examples.
- If an employee who falls under the reduction refuses to sign the order, then an act must be drawn up. It is written in the presence of two witnesses who certify with their signatures that the employee was notified of the upcoming reduction.
- If the employee who falls under the reduction is in a trade union organization, then she must be warned about the reduction even before the order is written. At the same time, you need to ask for their informed opinion about the situation.
- If an employee who simultaneously holds the position of head (or deputy head) of a trade union falls under dismissal, then he can only be dismissed with the consent of his immediate superiors.
- If there is a suitable place for an employee who is being laid off, you must offer him a transfer to another position. If the manager does not do this, then the reduced employee has the right to challenge the decision to reduce and return his job by force.
In contact with
Carrying out its business activities, the company may experience various kinds of difficulties in which it has to close some lines of business, or reduce their volumes. All this leads to the fact that part of the company's employees will need to be reduced. Dismissal to reduce staff requires compliance with a certain procedure, which is regulated by the norms of the law.
The reduction in the number or staff of employees is often associated with a revision and change in the organizational and production structure of the company.
They, in turn, occur due to the redirection of activities, the appearance of new equipment at the enterprise, and the improvement of working conditions for workers in the company according to the SOUT.
There are two concepts in this situation that are similar, but they must be distinguished by personnel officers - a reduction in the number of employees and a reduction in their number.
The reduction in staff entails the deletion from the staff list of fully defined professions and positions. That is, there will be no such workers at the enterprise in the future. For example, the profession of a salesperson is excluded from the staff list.
Sometimes the management under such a reduction tries to sum up the dismissal of an objectionable employee. One profession is removed from the staff, another one appears with the same functional responsibilities as the first, but with a different name. If this is discovered by the relevant authorities, then the company's management cannot avoid problems, and penalties will be applied to it.
The procedure for reducing the number of employees is associated with a decrease in staff units for a particular profession. The profession or position itself is retained in the staff list.
This often happens when new equipment is introduced into the process, which is carried out during production automation. For example, four turners worked at the enterprise, after the commissioning of a new machine, the number of workers needed to service it was only 2 people.
Attention! In any of these cases, the administration of the organization must understand that if it conducts a dismissal to reduce staff or headcount, then there must be serious grounds for this. Otherwise, the court will restore the rights of the employee and return him to the company, while the management will have to pay compensation and pay fines.
Who is not eligible for layoffs?
As a rule, a significant number of employees are laid off due to redundancy, and this whole process is regulated by legislative acts. The same documents also establish a list of categories of employees who cannot be reduced or have benefits for this dismissal. This is carried out as part of the provision of social guarantees by government agencies.
Such people include:
- Women working at the enterprise in position;
- Employees with young children under three years of age;
- Employees who are recognized as single parents and are raising children with a disability group under 18 or young children under the age of 14;
- Those who work at the enterprise, who are on sick leave at the time of the reduction. However, this right is retained until the disability sheet is closed.
- Employees who are on vacation, while the type of vacation does not affect this right in any way.
In situations where the company, despite all the established rules, nevertheless reduces them, the rights of these citizens can be restored by the court, and the organization itself can be held accountable.
Attention! When layoffs occur, some employees may have preferential treatment over other employees in the selection of candidates, which allows them to keep their job and not be included in the sample of layoffs.
These employees include:
- People working at the enterprise and being the only breadwinner in the family.
- Employees of the company who have two or more minor children.
- People working at the enterprise who have previously suffered from a work injury in the same organization.
- Disabled employees whose disability arose while serving in combat operations.
- Employees of the organization previously sent to improve their skills.
Benefits while maintaining a job are employees who have high labor productivity or high qualifications.
Before selecting candidates for reduction, all personal files are considered by a specially created commission. Its formation takes place on the basis of the director's order, which defines the goals and objectives of its creation, the reasons for this event, the list of names of its members, the rights and obligations of these employees, as well as the period of operation. She determines whether the employee has an advantage or not, for this she needs to submit the relevant documents for consideration.
Attention! When studying cases, reports and memos from the heads of departments of the company are also taken into account, which reflect information about productivity, qualifications and the presence of penalties and violations by a particular employee. Qualification is also confirmed by the fact that the employee has the relevant certificates, diplomas, certificates, etc.
The result of the commission's work is the issuance of acts for each employee, which reflects recommendations either on dismissal or on retaining their job.
The rights of the employee during the reduction
The employee always perceives the reduction from the negative side. However, he must know that no matter what, he has rights under this procedure.
The following can be distinguished:
- The administration of the company before the reduction of employees must send them written notices of future dismissal two months in advance. It can be handed over to the employee personally, while he must indicate with his visa that he received it, or by registered mail.
- Prior to dismissal, the dismissed person must be offered all available vacancies at the enterprise. This must also be done in writing.
- An employee working at the enterprise, after the reduction, can count on a severance pay in the amount of average earnings for two months, and if he does not get a new job, then for the third month too.
- If an employee belongs to privileged categories of citizens who are eligible while maintaining a place during a layoff, he can use it.
- Leave the enterprise ahead of schedule, without waiting for the deadlines for reduction provided for by law.
Downsizing: Compensation in 2018
If an employee is dismissed due to a reduction in staff, then mandatory compensation must also be paid:
- Monthly severance pay. Its payment is carried out together with the final settlement upon termination of the contract.
- Average earnings per month for the period until the dismissed person finds a new place of work, but not more than 2 months from the fact of dismissal. In this case, severance pay will be credited as payment for the first month. The payment of this amount is carried out on the day the salary is issued on the basis of an identity card and a work card, in which there is no record of employment.
- Monthly earnings for the third month, provided that the employee registered with the employment service within 14 days from the date of reduction, but she was unable to employ him. It is issued on the day of payment of wages on the basis of a passport, labor and a certificate from the employment service.
Attention! If the employee found a job within the first month after the reduction, then the paid allowance is not collected from him. If he got a job during the second or third month, then only the days from the beginning of the month until the date of admission to a new job are payable.
Dismissal to reduce staff step by step instructions 2018
When carrying out a reduction, it is very important to fully comply with the procedure established by law.
In the notification, you can also specify a list of vacancies that are currently open in the company.
The notice of the reduction of the employee must be handed over, he gets acquainted with its contents and puts his signature. If an employee refuses to pick up a document or put a confirmation of reading on it, then a commission is convened, in the presence of which an act is drawn up. In the future, these two documents are stored together.
Attention! If the employee who is subject to the reduction is absent from work, then this document must be sent to him by registered mail with an inventory and notification of receipt.
The mandatory notice period begins on the day following the day the employee familiarizes himself with the form.
Step 7. Offer the employee available vacancies
If the administration decides to make a reduction, then it is obliged to each employee who falls under the procedure to offer open vacancies in the company where he can work based on his state of health.
The firm must offer not only equivalent vacancies for the reduced position, but also all subordinate and less paid ones.
Job offers must be made in writing. This can be done on a separate form, or included in the notice of reduction. On each such form, the employee must put with his own hand whether he agrees or not, indicate the current date and personal signature.
If the employee refuses to leave any mark on the proposal form, then a commission must be collected, which draws up an act of refusal. In the future, these two documents are fastened and stored together.
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Important! The administration must offer vacancies not once, upon notification of the reduction, but the entire 2-month period before dismissal. In fact, it is necessary to offer it to laid-off workers every time a free place appears.
If there are no vacancies, then this must also be reported in writing. The abbreviated person gets acquainted with the document and puts his signature on it.
Step 8. Early termination of employment
Attention! The motivated opinion of the trade union needs to be filled out only in the event that an employee who is part of it quits. After the complete execution of the order, it is subject to registration in the register of orders and is submitted for signature to the management.
Step 10. Familiarizing the employee with the dismissal order
The issued order must be signed by the head of the company. After that, the document is issued to the employee for review and signature. He must carefully read its contents, and then put the visa in a special box at the bottom of the form.
If the resigning person cannot familiarize himself with the document due to circumstances (for example, illness), or refuses to do so, then a commission is convened, and in the presence of it, an act of refusal to sign is drawn up. In the order itself, in the column where the employee had to put a mark, the details of this act are entered.
The employee may request that a copy of the order or an extract from it be given to him. The administration cannot refuse him this request.
Step 11. Making an entry in a personal card
Step 14. Issuance of salary arrears and severance pay
On his last day in the company, the employee must receive all the amounts of money intended for him, they include:
- Salary for the last month of work in the company;
- , if any;
- Dismissal benefit, which may be established by labor or other internal local acts.
- Severance pay for layoffs.
In practice, a situation may arise that an employee cannot collect his money on his last day. For example, due to illness. In this case, all amounts of money will be kept in the company until the employee applies for them. After that, they must be paid the next day.
If settlement funds are not issued in cash from the cash desk, but by transfer to a card or bank account, then their issuance can be moved to the next banking day.
If the employee argues with the administration over the amount of the amounts that must be paid to him, then on the set day it is necessary to give the employee only the uncontested part of it. For the rest of the money, negotiations are carried out, or their fate is decided through the courts.
In addition, the law obliges the administration of the company to pay a severance pay upon dismissal in the amount of the average monthly salary.
Step 15. Hand out all the necessary documents
Each employee who leaves the company needs to hand over some documents:
- Employment history. Each employee needs to hand over his completed work on the final day at work.
At the same time, the personnel officer must make a note on the issuance in the register of labor movement. The resigning person, in order to confirm this, puts his signature in the journal.
In a situation where an employee cannot pick up a document that day - for example, he fell ill, or she agrees with his dismissal and refuses to pick up his work, then it is necessary to send him a notification by mail in writing.
In it, you need to inform about the need to pick up the book, or give permission to send it by mail. Once such notification has been sent, the organization declines any responsibility for not issuing it within a certain period of time.
- Certificate of accrued salary for the previous two years of work and for the current year. It is issued by.
- Certificate of the amount of accrued and transferred contributions to the Pension Fund for the time of work in the company. This document is drawn up in the form developed in the PF.
- An employee can ask the administration to give him copies of orders related to his activities in the company - for admission, transfer, promotion, etc. This must be done within three days from the receipt of a written request.
- . It must be issued within a period of three days from the fact that the company received a written request. The Ministry of Labor has developed its own form for this certificate, and regional labor authorities, as well as firms, can also offer their types of certificates based on the characteristics of their activities.
- Certificate of experience in the company - issued since 2017.
Step 16. Transferring information to the military registration and enlistment office (if necessary)
If among the laid-off workers there are persons liable for military service, then according to the established rules, the fact of dismissal must be reported to the military registration and enlistment office. This must be done within two weeks from the fact of dismissal. A separate form has been developed for notification, which has been put into effect by methodological guidelines for maintaining military records in companies.
Last modified: January 2020
Faced with financial difficulties, the company is forced to make unpopular decisions and carry out structural reorganization. One of these measures is often the dismissal to reduce staff, designed to optimize the number and professional composition of staff. Having decided to take such a step, the employer must have a holistic view of the upcoming procedure, the rules for selecting candidates for calculation and the amount of compensation due.
Regulatory rationale
The main requirements for the procedure for reducing the size of the team are spelled out in the Labor Code:
- - the procedure for reporting a future termination of relations;
- - on the procedure for assessing qualifications and selecting candidates for dismissal;
- – about financial support of the released specialists.
If an enterprise conducts mass layoffs, then personnel officers and management need to take into account the norms of Government Decree No. 99 of 1993 and federal law No. 1032-1 of 1991, and also take into account the requirements of Art. 373 of the Labor Code on the motivated opinion of the trade union.
Step-by-step procedure for layoffs for downsizing
The decision to reduce the total number of employees at the enterprise or to reduce individual structural units is too responsible to be taken solely. This way out of the crisis is discussed with the co-founders or shareholders of the company. The signing of the minutes of the meeting of co-owners starts all subsequent actions:
- The head of the company issues a reduction order.
- A list of employees is being formed. This must be done taking into account articles 179, 261 and 373 of the Labor Code.
- Sending a message to the employment authorities.
- Delivery of notices of future termination of employment on the basis of paragraph 2) of Art. 81 of the Labor Code with a simultaneous listing of options for transferring to other positions.
- Organization of translations for those who agreed to take the proposed vacancies. Carrying out early dismissal, if the parties have reached an agreement on this issue, Art. 180 TK.
- At the end of the notice period, a dismissal order is issued, and settlement and compensation payments are issued upon reduction.
- On the last day of work, the personnel department is obliged to issue a work book, as well as all certificates and extracts requested by former employees.
The terms and a set of measures to support workers are agreed with the trade union, if the number of layoffs falls under the concept of mass layoffs.
Reduction Order
Based on the decision of the founders, the director at his disposal specifies the list of positions and the number of reduced specialists, as well as the planned date for terminating contracts. An updated staffing table is being developed in advance, on the basis of which options for the transfer of employees will be offered.
Notification of employment authorities
The notice period depends on the number of staff positions to be cut. If within 60 days it is planned to lay off 200 or more people, then employment assistance services must learn about this at least 90 days in advance.
Not later than 2 months before the date of dismissal, the employment center must be informed about the professional composition of the released members of the team. Entrepreneurs can send information up to 14 days before the scheduled date.
Employee notification
The most unpleasant and crucial moment in the entire reduction procedure is the notification of candidates. Here it is necessary to strictly adhere to the basic rules:
- the notice must be in writing, named and detailed;
- the personal signature of the employee and the date of actual delivery must be affixed to the document;
- familiarization is best done in front of witnesses, in case of refusal to sign, they will confirm this fact and sign the act.
The document itself also requires accuracy in the wording and should be as informative as possible for the employee:
- each notice must be personal (full name, position and division are indicated);
- there must be a reference to how and when the decision to cut staff was made;
- it is necessary to clarify that it is his position that is being reduced, and on what date the calculation is scheduled;
- be sure to report the presence / absence of vacancies equal or lower in qualification;
- usually, in the same notice, the employer indicates the possibility of early dismissal in accordance with Art. 180 TK;
- the date of drawing up the document and the signature of the responsible person are fixed;
- the notice is printed in 2 copies, the employee's signature must remain on the copy of the employer, and the calendar date of delivery is marked.
It is advisable to leave space on the form for the employee's comment. In this field, he has the right to provide new data that allows him to receive immunity from reduction (for example, to announce pregnancy).
The template for an official announcement of the upcoming reduction was not legally approved, so each company is free to supplement or change the order in which information is presented.
What vacancies can be offered?
The law requires the employer to do everything possible to promote the employment of laid-off employees. This obligation will be considered fulfilled if:
- the candidate for dismissal was offered all available vacancies (from a managerial position to a cleaner), the main condition is that the new position must be suitable for qualifications and medical reasons;
- the proposed position is fundamentally different from the previous one in terms of responsibilities and salary, but it suits the employee based on data on additional education (for example, if a specialist has two diplomas in different specialties);
- the list of vacancies is included in the notification or handed over as a separate document against signature, but the employee responded with a written refusal or ignored it altogether.
The employee who agrees to the transfer loses the right to severance pay.
The transfer of a specialist who agreed to take the proposed vacancy can be made without waiting for the expiration of the deadline for reporting the involuntary termination of labor relations.
How to issue an order and fill out work books for employees?
It makes no sense to issue a dismissal order in advance, as circumstances can change dramatically. It is more reasonable to sign the document on the day of settlement or the day before.
Most often, they use the T-8 form, but since 2013 this has ceased to be mandatory (Goskomstat Resolution No. 1 of 2004 is now only a recommendation). It is more important to comply with the requirements for the content of the order, it must indicate:
- full details of the enterprise;
- date and place of preparation of the paper;
- Name and position of the employee;
- reason for dismissal and reference to the standard (in case of reduction of paragraph 1) or 2) of Art. 81 TC);
- grounds (data of the reduction order, notification, refusal of proposed transfers, etc.);
- Signature of the management or authorized person for personnel matters;
- a mark personally affixed by the employee on familiarization or signatures of witnesses on fixing the fact of refusal.
On the basis of a signed order, an employee of the personnel service can make an entry in the work book and fill out a personal card of an already former colleague. It is not recommended to show personal initiative in this case, Government Decree No. 225 of 2003 suggests the following procedure:
- In column 1, you need to enter the record number according to the continuous numbering.
- In column 2, the date of the actual calculation is noted.
- In column 3, the verbatim wording from the order to terminate the employment contract is transferred.
- In the 4th column enter the data of the order-ground (name, number, date).
The record is sealed with two signatures at once (the person responsible for personnel records management and the owner of the book), as well as the seal of the enterprise, clause 35 of the Rules for Keeping Books.
Sample entry in the labor with a reduction in staff Separate nuances of the selection of candidates
Concise information regarding the right to retain a job is set out only in Article 179 of the Labor Code. The basic rule for determining the value of each specialist is to compare qualifications and performance. In order for the decision to be considered justified and objective, when making a choice between employees of one unit, you need to:
- assess the correspondence of the position and specialization according to the document on education;
- analyze data on the fulfillment of the production norm, cases of bringing to disciplinary responsibility, the frequency of encouragement;
- evaluate the quality and duration of work in the current capacity;
- highlight the presence of each unique professional abilities, mastery of advanced skills, the facts of advanced training in the profession;
- request the opinion of the trade union organization, Art. 373 TK;
- take into account the content of the collective agreement, which may contain additional evaluation criteria.
In addition, the employer will have to analyze some of the facts of the biography of employees and the circumstances of their personal lives. It is important to immediately exclude from the list of parting those whom the legislation classifies as privileged categories.
What categories are not threatened with layoffs?
There are two scenarios for the development of events: the staff and number are canceled completely as a result, or there is a reform of the team and a decrease in the total number of employees. In the first case, no benefits matter: all employees will be fired, regardless of qualifications and circumstances.
If the company plans to continue operating, a number of circumstances set out in Art. 261 of the Labor Code, guaranteed to protect individual employees from layoffs:
- pregnant women employed on the terms of an indefinite contract;
- expectant mothers working under a fixed-term contract (until the end of pregnancy);
- mothers with children under 3 years of age;
- women who independently raise a child with a disability (under 18 years of age) or a minor (under 14 years of age) include single male parents and sole legal representatives in the same category;
- sole breadwinners in a family with at least three children under 14 years old and at least one of them under 3 years old.
Nowhere in the legislation is there a rule guaranteeing the retention of the right to work according to the calendar principle “who comes first”. The duration of cooperation with the company is taken into account, but is not decisive.
Does a disabled person or a pensioner have an advantage over the rest?
- an employee who has two or more disabled relatives as dependents;
- a person whose family no longer has employed or self-employed members;
- an employee who was previously injured in the same production;
- combat invalid;
- a part-time student sent to study at the initiative of the current employer.
Additional criteria can only be introduced privately, in a collective agreement, art. 8 TK. However, at the federal level, neither a pensioner nor a disabled person who received a group on the basis of a profession not related has any privileges.
Employees who are on leave or absent due to illness cannot be made redundant prior to return to work or discharge.
What severance pay (compensation) is due in the calculation?
When completing the dismissal of an employee to reduce staff, it is necessary to carry out a full settlement with him no later than the last day of work. At this point, the employer accrues and pays:
- the rest of the salary
- accrues vacation compensation or makes deductions for the days used in advance;
- unconditional severance pay in the amount of monthly average earnings, art. 139 TK.
However, the payment of compensation for workers affected by the reduction does not end there. Article 178 of the Labor Code provides for several more types of benefits, depending on the further development of the situation.
| Payment type | Order of appointment | Foundations |
|---|---|---|
| Saving the average salary for 2 months of job search (after dismissal) | It is charged if, after 60 days, the shortened one has not found a new place | He can do this on the basis of the original labor, in which there is no record of a new job |
| Average earnings for the 3rd month of unsuccessful job attempts | Subject to registration at the employment center in the first 14 days after the termination of the employment contract | Confirmation will be a certificate from the state department of employment assistance |
| Severance pay for part-time workers | One average salary, calculated according to the rules of art. 139 TK | If at the time of the reduction, the part-time worker remains employed at the main place, the employer pays only severance pay, there is no reason to keep his earnings for the next 2-3 months |
It should be borne in mind that the maximum amount of financial support from the employer will not exceed the average payments for three months, since the accrual takes place taking into account the amount that was unconditionally issued on the last day of work.
An example of calculating severance pay (compensation) when reducing
Suppose that on March 18, 2019, the engineer Sidorova I.A., who has worked at the enterprise for more than a year, is dismissed for reduction, receiving a salary of 30,000 rubles. Provided that for the last 12 full months she has not been sick and has not gone on vacation, the amount of the full annual salary will be 360,000 rubles. Based on these data, the billing period is 03/01/2018 - 02/28/2019, and table of accrual of settlement and benefits will look like this:
| Payment name | Calculation formula | Final value |
|---|---|---|
| Remaining salary | 30,000 rubles / 20 w.d in March × 11 days worked | 16 500 rub |
| Holiday compensation (standard 28 days for a full year + 2 days for March 2019) | 360,000 rubles / 12 / 29.3 × 30 days of unused rest | RUB 30,716.72 |
| Severance pay for 1 month (for the period 19.03.2019-18.04.2019 inclusive) | 360,000 / 247 r.d. × (9 r.d. + 14 r.d.) | 33 522 rubles |
| Average earnings for two months of job search (for the period 03/19/2019-05/18/2019 inclusive) | 360 000 / 247 rub. × (9 w.d. + 22 w.d. + 8 w.d.) - 33,522 rubles | RUB 23,320.11 |
| Average earnings for the third month (for 05/19/2019-06/18/2019 inclusive) | 360 000 / 247 rub. × (10 w.d. + 11 w.d.) | RUB 30,607.29 |
| Total for the entire period of employment attempts | Calculation by dates:
|
RUB 134,666.06 |
Magazine"Labor disputes" made a rating of five risks for companies - employers in the dismissal of employees due to staff reduction.
Client Relations Manager Sergey Fedorov was fired due to a reduction in the organization's staff. He considered that the employer fired him illegally and went to court. As the main arguments, the employee referred, firstly, to the inexpediency of dismissal, since, by the nature of its activity, the company could not do without a customer service manager. And, therefore, the dismissal is imaginary. Secondly, the employee received a notice of the planned reduction by mail, which is a violation of labor laws.
In accordance with Part 2 of Art. 180 of the Labor Code of the Russian Federation, employees are warned about dismissal due to staff reduction personally and against signature, which was not done in this case. Thirdly, the employer did not offer him all the available vacancies, although the organization had temporarily vacant positions for women workers on parental leave. For example, there was a vacancy for a quality control specialist, but it was offered to another downsizing worker - a purchasing manager. According to the laid-off worker, he had a preferential right to occupy this position, because he had a higher education, while the purchasing manager had only a specialized secondary education. And, finally, fourthly, the employer, in violation of the requirements of the Law of the Russian Federation t 19.04.1991 No. 1032-1 “On Employment in the Russian Federation”, did not notify the employment service of the planned reduction, although he was obliged to do so. All this became the main arguments of the employee when applying to the court with demands for reinstatement, payment for forced absenteeism and compensation for non-pecuniary damage caused by illegal dismissal.
At first glance, the employee's arguments may seem convincing. However, let's find out whether the employer really committed violations upon dismissal that could lead to the recognition of his actions as illegal. Let's analyze each employee's argument and offer our own counterargument.
Arguments that employees most often use when disputing dismissal:
- the employer did not have objective reasons for reducing staff;
- the employee was warned about the dismissal by mail;
- the employee was not offered temporarily vacant positions;
- the employer did not take into account the employee's pre-emptive right to remain at work;
- the employer did not notify the employment service of the planned reduction.
Risk one: the argument about the unreasonableness of staff reduction
In court, the employee argued that the employer did not need to reduce his position - a company that is professionally engaged in sales cannot operate without account managers. However, this argument is unlikely to help the employee to challenge the dismissal. The fact is that the legislation does not require the employer to justify why he reduced this or that position. The very fact of reduction is important. This is confirmed by the highest courts.Supreme Court of the Russian Federation:
“For the purpose of efficient economic activity and rational property management, the employer independently, under his own responsibility, makes the necessary personnel decisions” (selection, placement, dismissal of personnel) ”(clause 10 of the Resolution of the Plenum of the RF Armed Forces dated March 17, 2004 No. 2).
Constitutional Court of the Russian Federation:
"The decision to change the structure, staffing, number of employees of the organization belongs to the exclusive competence of the employer, who has the right to terminate the employment contract with the employee in connection with the reduction in the number or staff of the organization's employees, subject to the procedure for dismissal enshrined in the Labor Code of the Russian Federation" (definition of the Constitutional Court RF dated July 15, 2008 No. 413-О-О).
Courts of general jurisdiction also share the approach formulated by the highest judicial authorities.
Arbitrage practice
The employee applied to the court demanding that the dismissal be declared illegal. In his opinion, the reduction was imaginary, since his position in the organization is needed. The court of first instance, satisfying the employee's claims, indicated that there had been no reduction in staff in relation to the position held by the plaintiff, and in addition, the defendant did not provide the court with evidence of the need to reduce this position. However, the court of cassation recognized this conclusion as unfounded, stating the following. The court, checking the legality and validity of the dismissal of an employee under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation does not resolve the issue of the advisability of excluding a specific position from the staffing table, since this is within the competence of the employer, and therefore the court is not entitled to discuss the advisability of downsizing. The fact of staff reduction was confirmed by the orders of the General Director, as well as staffing tables.
Based on this, the higher court overturned the decision of the court of first instance and refused to satisfy the employee's claims (ruling of the Moscow City Court dated 09.09.2010 in case No. 33-28514).
Similar conclusions are contained, in particular, in the rulings of the St. Petersburg City Court of February 15, 2010 in case No. 33-1807/2010, the Moscow City Court of July 1, 2010 in case No. 33-18716, etc.).
Thus, the employer does not need to justify the expediency of the reduction. In court, he only needs to confirm that the reduction in staff was real. To do this, it is necessary to submit orders for staff reduction, the previous staffing table and the current one. The absence in the latest version of the staffing of the position, the reduction of which the employee disputes, will be appropriate evidence for the court.
An additional argument in favor of the company: employees do not have the right to appeal against the decision of the employer to reduce the number or staff
The workers filed a lawsuit demanding that the layoff order be declared illegal. In their opinion, the board of the company violated the established procedure for making such a decision. However, the court refused to satisfy the demands of the workers. He pointed out that a person working under an employment contract with an organization is not entitled to appeal against decisions of the collegiate bodies of a legal entity, since only members of the board are entitled to this right. The court emphasized that employees do not have the right to appeal against the decision of the employer to carry out measures to reduce the number or staff. He noted that the reduction in the number or staff of employees is an unconditional right of the employer, in the implementation of which he must follow the procedure specified by the Labor Code of the Russian Federation. At the same time, employees can only check the facts of notifying them of the upcoming dismissal, proposals for other vacant positions, but not the procedure for the employer to decide on the reduction (determination of the Sverdlovsk Regional Court of 06/02/2009 in case No. 33-5558 / 2009).
Risk two: the employee was not notified of the upcoming layoffs
The Labor Code of the Russian Federation does require that the employee be warned of the upcoming reduction in staff personally and against signature at least 2 months before the date of dismissal (part 2 of article 180 of the Labor Code of the Russian Federation). For this, as a rule, a notice of the upcoming dismissal is drawn up. If the employee refuses to familiarize himself with such a document in writing, then an act is drawn up about this, and the notification itself is read aloud (this is also indicated in the act). Ideally, you should strive to notify workers in person. The courts are more loyal to this method than using the postal service. At the same time, nowhere in the law does it say that the employer cannot send a notice of the upcoming dismissal by mail. Therefore, in the event of vacation or illness, notification may be sent to the employee at his home address by mail or courier. The main thing is that the employer has a notification of delivery of the letter. Otherwise, it will be difficult to prove the fact of notification of the employee.According to paragraph 2 of the Rules for the provision of postal services (approved by Decree of the Government of the Russian Federation of April 15, 2005 No. 221), a postal item with a return receipt is such a postal item, upon submission of which the sender instructs the postal operator to inform him or the person indicated by him when and who received the mail. Therefore, when handing over a postal item, the employee signs for its receipt. If the postal item was with an inventory of the attachment and with a return receipt, then the employer can say that the employee was warned about the upcoming dismissal against signature.
So, the employer can notify the employee of the upcoming reduction by mail, and this method of notification will comply with the law, subject to two conditions: the employer has a document on which the employee signed to receive the notice and a notice of dismissal at least 2 months in advance. Please note that the calculation of the 2-month period does not start from the moment the notification is sent, but from the moment the employee receives it.
If these conditions are met, then, most likely, the court will consider the dismissal procedure complied with.
Arbitrage practice
Organizational and staffing measures were taken in the company, as a result of which the position of Deputy Director for Science was reduced. The employee who held this position did not agree with the dismissal and went to court demanding that the dismissal be declared illegal. In his opinion, there was no actual reduction, while the dismissal procedure was carried out in violation. In particular, the employer did not notify him of the upcoming reduction against signature 2 months before the dismissal. However, the court sided with the company. He pointed out that on February 18, 2010, a notification of the upcoming dismissal was sent to the employee. On April 16, 2010, the employee was dismissed from April 19, 2010 under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation. Referring to the employee's explanations, the court noted that the notification was received by his daughter, who on February 18, 2010 contacted him by phone and informed him of the notification received, and also read out the list of proposed positions. This conclusion was also confirmed by a postal envelope, a notice and a duplicate notice received by the employee after he left his vacation on March 26, 2010, in which he confirmed the fact that he had read the notice and the list of vacant positions on February 18, 2010. After evaluating the evidence presented in their totality, the court concluded that the plaintiff's arguments regarding the violation by the employer of the term for warning about the upcoming reduction provided for by labor legislation are unfounded. In this regard, the dismissal was recognized as legal (determination of the Moscow Regional Court dated September 16, 2010 in case No. 33-18024).
It should be borne in mind that in the event of a conflict dismissal, the employee may not pick up the document at the post office. Therefore, if the employer has the resources, it makes sense to play it safe and hand the notice of staff reduction to the employee personally (for example, send a courier or a personnel officer to his home). The main thing is that the laid-off worker signs for the receipt of the notice. When an employee leaves for work, the delivery of a notification to him should be duplicated again. At the same time, it is also important to keep all documents confirming the notification sent to him.
When can an employer return a reduced position to the staffing table
The legislation does not establish a time frame for the return of an employee's position to the staffing table. Since it is up to the employer to decide whether it is worth reducing staff, he also decides when he should expand the staff again. For example, if the reduction in staff was caused by financial difficulties, then after the normalization of the economic situation, it will be legal to return the reduced position. However, the imminent return of such a position may raise suspicions that the reduction was actually imaginary. And this automatically entails the recognition of the dismissal as illegal. Therefore, if there is a need to immediately return the reduced unit, it is better to play it safe and introduce a position under a different name.
Third risk: the employee was not offered all the vacancies
Before dismissing an employee due to a reduction in the number or staff, the employer will have to prove the impossibility of his employment within the company. And hiding the availability of vacancies is a difficult task. The employee, one way or another, learns about vacant positions: in a conversation with a colleague, from information on the corporate website, or through the court he will demand the company's staffing table. Therefore, in order not to get into trouble, it is better for the employer to prepare and determine in advance a list of vacant positions that could be offered to the employee. At the same time, compiling such a list can be difficult. So, part 3 of Art. 81 of the Labor Code of the Russian Federation speaks of only two criteria for suitable work:- compliance with the qualifications of the employee (regardless of whether it is a lower or lower paid position);
- absence of contraindications for health reasons for the employee.
In such a situation, the employer can be advised to use the following argument in court: the positions of employees on parental leave were not offered to the employee, since they are not considered vacant, but only temporarily free. This conclusion is confirmed by judicial practice.
Arbitrage practice
The employee was fired due to downsizing. Considering the actions of the employer unlawful, she went to court with a demand to recognize the dismissal under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation illegal. In her opinion, when she was dismissed, she was not offered all positions, in particular, there were temporary vacancies for employees on parental leave. However, the court pointed out that the offer by the employer to an employee subject to dismissal of temporarily vacant positions due to long-term leave of employees, including in connection with caring for a child, is not provided for by law. The court noted that these posts are not vacant in the sense of the provisions of Part 3 of Art. 81 of the Labor Code of the Russian Federation, since work in these positions is temporary (determination of the St. Petersburg City Court of August 30, 2010 No. 33-11908).
At the same time, we note that the question of the offer of temporary positions is not unambiguous. Some courts consider that such an obligation is nevertheless assigned to the employer. So, for example, the Moscow City Court in one of its decisions indicated that the Labor Code of the Russian Federation does not contain clarifications whether the proposed job should be permanent or temporary, while the employer is obliged to offer all available vacancies (decision of the Moscow City Court dated 01.07.2010 to case no. 33-19668/2010). However, most of the judicial practice on this issue is still in favor of the employer (see, for example: Review of cassation and supervisory practice in civil cases for 6 months of 2005 of the Perm Regional Court; rulings of the Voronezh Regional Court dated June 26, 2007 in case No. 33- 1629; of the Moscow City Court of July 22, 2010 in case No. 33-20380, of August 19, 2010 in case No. 33-26128, of September 16, 2010 in case No. 33-29046, etc.).
Thus, in the court of the company, most likely, it will be possible to refute the employee’s argument that the dismissal procedure was violated, since he was not offered temporarily free vacancies.
The dismissal can be considered illegal if there were no vacancies offered at the head office of the company
The employee applied to the court with a demand to recognize the dismissal due to the reduction in the number of illegal. She indicated that when she left, she was not offered all the vacancies available in the company. The court agreed with this argument. He noted that during the procedure for dismissal of employees, by virtue of the law, the employer is obliged to provide vacant positions in the same organization, including all its branches and structural divisions located in the area. At the same time, the employee worked at the Bank of Russia, which, together with its structural divisions, forms a single system. The court noted that only the Bank of Russia has the status of a legal entity, the structure of which includes institutions throughout Russia, of which only in St. Petersburg (where the employee worked) there are six. In this regard, the case was sent for a new consideration (determination of the Supreme Court of the Russian Federation dated 06.25.2009 No. 78-В09-12) Correctly compiling a list of vacant positions will help the employer avoid the reinstatement of an employee Offering another job is perhaps the most important stage in the dismissal of an employee to reduce staff. To avoid mistakes, it is important to correctly list the positions for which the employee can apply. Recall that the employer should offer not just all the vacancies he has, but only those that the employee can take, taking into account the state of health and qualifications. At the same time, as the Supreme Court of the Russian Federation noted, it is necessary to take into account the real ability of the employee to perform the work offered to him, taking into account his education, qualifications, and work experience (paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). Job descriptions for each position will help the employer with this. They can be submitted to the court to confirm that the employee did not meet the requirements.
Fourth risk: upon dismissal, the employee's preferential right to remain at work was not taken into account
Employees who have been made redundant are often cited in court as having the preferential right to stay at work. Indeed, by virtue of the law, before starting the redundancy procedure, the employer must find out whether certain employees have a preferential right to remain at work. In accordance with Art. 179 of the Labor Code of the Russian Federation, the employer must give preference to an employee with higher labor productivity and qualifications. In the case of equal qualifications, persons who have two or more dependents, who have disabled family members, etc. are subject to leave at work. Several rules should be remembered here. First of all, the pre-emptive right should be taken into account only in relation to the same positions, that is, when there is a reduction not in a specific position, but in several positions. For example, when out of 8 purchasing managers they decided to leave only 5. In our case, the position to be reduced is occupied by only one employee - the customer service manager. Therefore, the employer was not obliged to compare the preferential right to retain a purchasing manager with the position of an account manager, since they have completely different responsibilities. This conclusion has also found confirmation in judicial practice.Arbitrage practice
The employee was fired due to downsizing. Considering the dismissal illegal, she went to court. In her opinion, the procedure for terminating the employment contract was violated in connection with the reduction in staff. The court of first instance agreed with the employee's argument and indicated that the employer had not taken into account her pre-emptive right to remain at work. However, the Supreme Court found this conclusion untenable. He noted that by virtue of the provisions of Art. 179 of the Labor Code of the Russian Federation, when reducing the number or staff of employees, the priority right to remain at work is granted to employees with higher labor productivity and qualifications. According to the meaning of this article, it should be applied when there is a question of leaving one of several employees performing equal labor duties at work. In this regard, the employee was denied reinstatement at work (determination of the St. Petersburg City Court dated 06.12.2010 No. 16436).
One more point should be noted. In our case, the employee was indignant that the vacant position of a quality control specialist was offered not to him, but to another employee who had a secondary specialized education. In this case, the employer had the legal right to choose whom to offer the vacant position in the first place. Article 179 of the Labor Code of the Russian Federation speaks of taking into account the pre-emptive right to remain at work, but not about the offer of vacant positions. If the purchasing manager had refused to move to the position, the employer would then have to offer it to the account manager. This follows from part 3 of Art. 81 of the Labor Code of the Russian Federation, according to which the employer is obliged to offer the reduced employee all available vacant positions.
Arbitrage practice
In connection with the reduction of the position, the employee was dismissed from the organization. Considering the actions of the employer illegal, he went to court. In his opinion, the employer did not take into account his pre-emptive right to stay away from work and did not offer the vacancy available in the company. However, the court disagreed with this conclusion. He noted that the company had several employees whose positions were subject to reduction. The court noted that in such circumstances, when several vacant employees apply for a vacant position, the right to choose a particular employee to fill the existing vacant positions belongs to the employer. In this regard, the dismissal was recognized as legal (determination of the Moscow City Court dated October 22, 2010 in case No. 33-30909).
Thus, when there are more laid-off workers than there are vacant positions in the company, the choice of whom to offer it to belongs to the employer. Since the purchasing manager agreed to take the vacant position, no violations were committed by the employer.
Three rules for the painless dismissal of an employee to reduce staff
- The employer may use additional criteria to assess labor productivity. In the event of a staff reduction, the preferential right to remain at work is granted to employees with higher labor productivity and qualifications (Article 179 of the Labor Code of the Russian Federation). But the law does not stipulate how exactly it is necessary to determine whose productivity and qualifications are higher. For these purposes, one can take into account, in particular, the period that the employee has worked in the specialty, his education and the number of incentives. If these indicators are the same for all candidates for dismissal, one must be guided by part 2 of this article, which contains a list of categories of citizens who have a preferential right to retain their jobs.
- The dismissal of a pregnant employee is illegal, even if the employer did not know that she was expecting a child. Article 261 of the Labor Code of the Russian Federation prohibits the termination of an employment contract at the initiative of the employer with pregnant women (except in cases of liquidation of the company). In practice, it happens that an employee who was informed of the upcoming reduction, in response, declares her pregnancy. If such an employee is fired, and the fact of pregnancy is confirmed, the court will reinstate her at work. Note that such situations may arise after the dismissal of the employee. For example, in the early stages of pregnancy, she herself may not know that she is expecting a baby. Nevertheless, judicial practice shows that in such situations the legality of dismissal is not made dependent on whether the employer or employee was aware of the pregnancy. In this situation, the employer can only be advised not to get involved with a legally savvy employee.
- When reducing a staff worker, there is a risk of fraud with a work book. A difficult situation can arise if an employee who has access to work books (for example, responsible for their storage) falls under dismissal. He can quit by taking his work book without signing for its receipt. Subsequently, he can make material claims to the former employer, stating that he was not given a work book, and without it he cannot get a job. In this case, it is better for the employer to take preventive measures and make a duplicate of the lost work book. This will allow him to send a notification to the employee about the need to appear for a work book. From the date of sending such a notification, the employer is released from liability for the delay in issuing a work book.
The fifth risk: the employer did not notify the employment service about the dismissal of the employee
By virtue of paragraph 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1, the employer is obliged to notify the employment service at least 2 months before the upcoming dismissal. In our example, the employee referred to the fact that the employer did not notify the employment service of the upcoming staff reduction. Since the employer did not do this, he thereby violated the legislation on employment of the population. However, does this entail the illegality of the dismissal of an employee to reduce staff? It should be noted right away that this issue is very difficult. Some courts are of the view that such a violation is not grounds for the reinstatement of an employee at work.Arbitrage practice
The employee was dismissed from the organization due to the reduction of the position she held. Considering the dismissal illegal, she went to court. In her opinion, the employer committed numerous violations, including not notifying the employment service 2 months in advance. Nevertheless, the court did not find violations entailing the illegality of the dismissal. The court indicated that the employer had the right to reduce her position. At the same time, the fact that the employer did not send information about the dismissed employee to the employment service cannot serve as a basis for reinstating her at work, since the Labor Code of the Russian Federation does not contain such an obligation (determination of the Moscow City Court dated 08.12.2010 in case No. 33- 38126).
Thus, the employer can declare in court that, despite the violation committed by him, this does not affect the legality of the dismissal. In addition, some courts examine how the violation affected the worker's rights. After all, the meaning of a message to the employment service about the release of an employee is that this body can quickly find a new job for the employee. If the employment service cannot do this precisely because the employer did not report the employee's dismissal in time, then we can talk about a violation of the employee's rights. However, this should be a separate subject of proof and the employee must already prove it.
Arbitrage practice
In connection with the decision of the employer to improve the organization of work, the rational use of personnel of functional units in the company, the position of the head of the logistics group was reduced. The employee who held this position considered such actions of the employer illegal and applied to the court demanding that he be reinstated at work. In his opinion, the dismissal under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation is unlawful, since the procedures for terminating the employment contract are violated. In particular, the employment service was not notified of the upcoming dismissal. The first and second instances refused the employee to meet the requirements. The employee filed a supervisory complaint. However, the supervisory authority confirmed the legality of the dismissal. The court noted that the fact that the employer's timely notification of the employment service about the upcoming staff reduction at the enterprise and the possible termination of employment contracts cannot serve as a basis for canceling the contested court decisions. The employee did not provide evidence of how this circumstance could have entailed or resulted in a violation of his right to employment with the help of the employment service (decision of the Moscow City Court dated December 23, 2011 in case No. 4g / 7-11008 / 11).
However, some courts take a formal approach to this issue and check only the documentary compliance by the employer with the procedure for dismissing an employee, and not how this affected the rights of the employee. In practice, there is a position according to which the failure to notify the employment service, coupled with the failure to notify the trade union, entails the illegality of dismissal.
Arbitrage practice
The first deputy head of the administration of the municipality was fired due to staff reductions. Disagreeing with this decision, he went to court. In court, the plaintiff explained that in fact there was no reduction, since functional duties remained and were redistributed among other employees. In addition, the dismissal procedure was violated, since the trade union committee and the employment service were not notified of his dismissal 2 months in advance. The court agreed with the plaintiff's arguments. He noted that the reduction of the position of the first deputy head of the administration of the Dzerzhinsky district of Perm was carried out in accordance with the procedure established by local regulations of the city administration. However, the procedure for dismissal of the employee was violated, since neither the trade union body nor the body of the employment service were notified in writing of his upcoming dismissal due to the reduction of his position in 2 months. In this regard, the dismissal was declared illegal (determination of the Perm Regional Court dated 08/01/2011 in case No. 33-7697).
It is worth noting that earlier the same court was of the opinion that these violations in themselves cannot be grounds for the reinstatement of an employee at work. It is necessary to provide evidence that this affected the rights of the employee (see Review of cassation and supervisory practice in civil cases for 2006 of the Perm Regional Court).
Thus, the employer's failure to notify the employment service significantly reduces the employer's chances of winning a labor dispute. However, if the company manages to convince the judge that all other elements of the procedure were followed and that the violation did not affect the employee's rights in any way, it is likely that the court will deny the employee reinstatement. Also, the employer can argue his position by the fact that violation of this obligation does not entail reinstatement, since it is not provided for by the Labor Code of the Russian Federation.
E. Yu. Koroleva, Deputy General Director for Legal Affairs of the law firm "Alternative Solution"
If necessary, the employer may decide to reduce the number or staff units. To avoid litigation with dismissed employees, a certain reduction procedure must be followed.
Maria Blagovolina,
Senior Associate at Allen & Overy
Certain categories of workers who are subject to social protection and who cannot be reduced: pregnant women; women with children under the age of three; single mothers raising a child under the age of 14 (a disabled child under 18) (Article 261 of the Labor Code of the Russian Federation). It is also impossible to reduce an employee during his disability or vacation (part 6 of article 81 of the Labor Code of the Russian Federation)
Can I offer temporary vacancies?
A vacancy is a position provided for in the staffing table of the company; an employment contract has not been concluded for the performance of work on it. That is, a position is not considered vacant if it is actually occupied by an employee, but he is on maternity leave, on parental leave, or temporarily transferred to another position. This is due to the fact that during this period the employee retains his workplace (position in the staffing table).
Thus, logically, the employer is obliged to offer so-called permanent vacancies. However, there is no direct prohibition in the legislation on the offer of temporary vacancies to employees who have been made redundant. That is, the employer can offer employees and temporary vacancies, while they need to conclude a fixed-term employment contract - for the duration of the absence of the previous employee. It should be noted that the practice of the courts on this issue is not unambiguous (decisions of the Moscow City Court dated 07/01/2010 No. 33-19668, St. Petersburg City Court dated 08/30/2010 No. 33-11908).
Dismissal before the expiration of the two-month period
If an employee who has fallen under the reduction writes consent to early dismissal, the employment contract with him can be terminated before the expiration of a two-month period. Such an employee must be paid additional compensation, the amount of which depends on the time remaining before the expiration of the two-month notice period (part 3 of article 180 of the Labor Code of the Russian Federation).
At the same time, an employee may quit not due to redundancy, but at his own request (Article 80 of the Labor Code of the Russian Federation). In this case, the employer is not obliged to pay compensation to the employee related to redundancy dismissal (Article 178 of the Labor Code of the Russian Federation).
Footnotes:
1 st. 81 of the Labor Code of the Russian Federation
2 tbsp. 179 Labor Code of the Russian Federation
3 art. 179, 180 of the Labor Code of the Russian Federation
4 tbsp. 394 of the Labor Code of the Russian Federation
5 st. 180 of the Labor Code of the Russian Federation
6 h. 3 tbsp. 80, part 1, art. 180 of the Labor Code of the Russian Federation
7 p. 2 art. 25 of the Federal Law of April 19, 1991 No. 1032-1
8 art. 178 Labor Code of the Russian Federation
9 approved. fast. Goskomstat of Russia dated 05.01.2004 No. 1
One of the grounds for terminating an employment contract at the initiative of the employer is a reduction in the number or staff of the company's employees 1 . Before layoffs, the personnel department and company management need to decide in advance whether there will be a reduction in staff or only in numbers.
Downsizing is a reduction in the number of staff members for a particular position. For example, instead of seven analysts, four remain on the staff list. Reduction of staff is a complete exclusion from the staff list of some positions. For example, the position of an analyst is completely excluded from the staff list.
Which option should an employer choose?
Despite the fact that the Labor Code provides for the same amount of guarantees and compensations for employees subject to dismissal due to a reduction in the number and staff, in practice the situation looks different.
In the event of a reduction in the number, the question of the pre-emptive right to remain at work 2 inevitably arises. The employer needs to choose from several employees with the same positions those who will have to be fired, and this choice must be justified. Of course, the Labor Code clearly states that the preferential right to stay at work (with a reduction in both the number and staff) is granted to workers with higher labor productivity and qualifications. However, most practitioners are inclined to believe that in the event of a reduction in staff, the pre-emptive right does not apply. After all, all employees with a selected full-time position are being reduced, that is, the employer does not have to choose which of the employees to leave and who to fire.
Judicial practice also proceeds from the fact that when reducing staff, the pre-emptive right is not taken into account when offering vacant positions. In this regard, from the point of view of the risks of litigation with dismissed employees, a redundancy procedure is a more reliable option.
We comply with the dismissal procedure
When reducing employees, it is important to correctly carry out all procedures and draw up documents 3. Violation of the established procedure may lead to the fact that the dismissed person will have to be reinstated and paid for his forced absenteeism 4. The court can reinstate an employee dismissed for redundancy, even if the employer made mistakes of a purely technical nature during the paperwork. The procedure for reducing the number or staff of employees consists of several stages.
Reduction Order
First of all, the head of the company issues an order to reduce the number or staff, which indicates the positions to be reduced. The same or a separate order must approve the new staffing table (with the changes that resulted in the reduction).
Active LLC in 2011 rented a building for an office in which it conducted its activities. In 2012, the management decided to cut rental costs due to the unstable financial situation of the company. Since February 2012, Aktiv LLC has been renting half of the building, in connection with which the head decided to reduce the number of cleaners (from two to one).
A downsizing order was issued (see below).
ORDER #2
on downsizing
Due to a decrease in the total area of leased premises for the office of Aktiv LLC
I ORDER:
1. To exclude from May 2, 2012 from the staff list of Aktiv LLC a staff unit by position:
2. Head of the personnel department Kalashnikova A.L. in the manner prescribed by the current labor legislation: notify the employee Maevskaya O.G. about the upcoming dismissal to reduce the number; report to the employment service authorities data on the upcoming release of the employee; prepare a list of vacant positions for the proposals of the released employee.
3. Approve the staffing table of March 1, 2012 No. 05-ShR and put it into effect from May 2, 2012.
Director Olkhin I.D. Olkhin
Acquainted with the order:
Head of the personnel department Kalashnikova A.L. Kalashnikov
Employee notification
About the upcoming dismissal due to a reduction in the number or staff of employees must be warned in advance - personally and against signature at least two months before the dismissal 5 . If the employee refuses to put a mark on receipt of the notification, you need to draw up an act in front of witnesses (at least two people), which will be confirmation of the fact of the notice of dismissal.
The head of Aktiv LLC decided to eliminate the position of "web application developer" in order to reduce labor costs in the company. Startsev I.P. will be dismissed due to staff reduction on 02.05.2012. The personnel service hands him a notice against signature (see below), which Startsev I.P. must sign, 03/01/2012 (at least two months before the date of dismissal). At the same time, Active LLC has a vacancy for a web designer, and it was offered to Startsev I.P.
Notification
about the upcoming dismissal due to the reduction of the staff of the organization
Dear Ivan Petrovich! In connection with the implementation of measures to reduce the staff of employees, your position "web application developer" from May 2, 2012 will be reduced.
According to Part 1 of Article 180 of the Labor Code of the Russian Federation, you are offered the following job (vacant position) at Aktiv LLC that matches your qualifications: web designer.
In accordance with Part 1 of Article 178 of the Labor Code of the Russian Federation, you will be paid a severance pay in the amount of your average monthly earnings, and you will also retain your average earnings for the period of employment, but not more than two months from the date of dismissal (with offsetting the severance pay).
Reason: Order No. 12 dated March 1, 2012.
Director Olkhin I.D. Olkhin
Acquainted with the notice
Startsev I.P. Startsev 01.03.2012
Job offer
Employees must be offered vacant positions available to the employer at that time, to which they can be transferred 6 . This must be done not once, along with the notice of dismissal, but several. Employees to be made redundant must be offered every job that appears in the company during the notice period. Based on the practice and position of the courts, we recommend that employees who are subject to redundancy be informed of vacancies three times: together with the notice, one month after reading the notice and on the day preceding the last working day.
Please note that it is necessary to offer not only a vacant position or a job corresponding to the qualifications of the employee, but also a vacant lower position or a lower-paid job. At the same time, the employer is obliged to offer the employee all the vacancies that meet these requirements that he has in the area. The employer is obliged to offer vacancies in other localities only if this is expressly provided for in the collective or labor agreement.
If the employer conducts a reduction in the number or staff, he should not place advertisements for the search for candidates for such positions. We also recommend that you do not re-enter the position in the staffing table for at least six months after the completion of the reduction procedure. Otherwise, employees have a chance to successfully challenge the dismissal and reinstate their jobs, proving that there was no actual reduction in the number or staff.
Employment Service Notice
The employer is obliged to report the reduction in the number or staff to the employment service 7 . This must be done in writing no later than two months before the dismissal of employees. If the decision to reduce the number or staff of employees can lead to mass layoffs - no later than three months before the start of the relevant activities. In an appeal to the employment service authorities, the position, profession, specialty and qualification requirements for them, the conditions of remuneration for each individual employee are indicated. Criteria for mass layoffs are determined in industry and (or) territorial agreements.
At the final stage of the procedure for reducing the number or staff, compensation must be paid to laid-off employees who did not agree to the vacancies and will not continue to work in the company in other positions. Employees need to pay a severance pay in the amount of the average monthly earnings and keep the average earnings while the dismissed person is looking for work (but not longer than two months from the date of dismissal) 8 . You also need to issue orders to terminate employment contracts in the form of No. T-8 9 and make entries in the work books of dismissed employees. The entry will look like this: “Fired due to a reduction in the number (staff) of employees of the organization, paragraph 2 of part 1 of article 81 of the Labor Code of the Russian Federation.”
Preparing documents for court
The downsizing must actually take place. This fact is confirmed by the submission to the court of the staffing table before the reduction procedure and after its completion (after the reduction, the new staffing table approved by the order should be in force). Judicial practice proceeds from the fact that the right to determine the number and staff of employees belongs to the employer. Although the employer is not required to prove the rationale for the decision to reduce staff, it is recommended to prepare a feasibility study. The presence of such a document will strengthen the employer's position in court and refute the employee's arguments that the reduction was far-fetched. Often, employees bring printed notices to the court stating that during the downsizing period, the company was looking for employees for the positions being reduced. Such evidence may indirectly confirm the groundlessness of the reduction procedure, therefore I recommend that you refrain from publishing vacancies for positions being reduced until the employee is fired and in the next 2-3 months.