home Accounting Downsizing advantage. Labor legislation on layoffs

Downsizing advantage. Labor legislation on layoffs

In the content of the priority right to leave at work in case of a reduction in the number or staff of the organization's employees, the Code highlights the advantages of two levels. The first level includes benefits that are absolute. Those employees who have higher labor productivity and qualifications have these advantages. The legislation does not fix any specific list of documents that testify to higher labor productivity. Therefore, this legal fact is established on the basis of the cumulative assessment of the evidence. These may include data indicating high quality the work performed, the performance by the employee of important responsible tasks or a larger amount of work compared to employees occupying similar positions or performing work in the same profession and the same degree of complexity. In the absence of direct evidence of a higher labor productivity of a particular employee compared to another employee, indirect evidence of this may also be taken into account. legal fact. These may include data on rewarding an employee for high performance in labor.

Qualification is proved by documents on education, advanced training, professional retraining.

Evaluation of the higher labor productivity and qualifications of the employee and the decision on the preferential right to remain at work in case of a reduction in the number or staff of the organization's employees is made by the employer. In the event that the dismissed employee does not agree with such a decision and considers the termination employment contract illegal, he has the right to apply with a labor dispute directly to the court. When considering a dispute, the court also evaluates the business qualities of the abandoned employee and compares them with business qualities fired worker.

§ 2. The benefits of the second level are determined only with equal labor productivity and qualifications. These benefits are enjoyed by:

Family - in the presence of two or more dependents;

Persons in whose family there are no other self-employed workers;

Employees who have received an industrial injury or occupational disease in this organization;

Disabled Great Patriotic War and invalids of military operations for the defense of the Fatherland;

Employees who improve their skills in the direction of the employer on the job.

The employee's dependents include any members of his family who are fully supported by him or receive assistance from him, which is for them a permanent and main source of livelihood. This can be not only children, but also parents of spouses who receive a pension, as well as other family members with income, if the employee's assistance is a permanent and main source of livelihood for them. The absence of other self-employed workers in the family means that the receipt of various kinds of social payments (pensions, allowances, compensations, various subsidies) by the family members of the worker should not be taken into account.

The concept of labor injury is given in the Regulations on the procedure for providing benefits for state social insurance, approved by the Resolution of the Presidium of the All-Union Central Council of Trade Unions of November 12, 1984. Work injury is understood as damage to the health of an employee as a result of an accident that occurred under the circumstances specified in this normative act. These circumstances include the following:

When performing labor duties, as well as when performing any actions in the interests of the organization, even without instructions from the administration;

On the way to or from work;

On the territory of the organization or in another place of work during working hours (including established breaks), during the time necessary to put in order the tools of production, clothing, etc. before or after work;

Near the organization or other place of work during working hours, including the established breaks, if being there did not contradict the internal labor regulations.

Work injury is also recognized damage to health as a result of an accident that occurred during the passage industrial training(practice) or conducting educational experiences (experiments) during study; while doing public duties, as well as tasks public organizations whose activities do not contradict the Constitution of the Russian Federation; in the performance of civic duty to save human life, property protection and law enforcement. The concept of an employment injury is much broader than such a concept as an accident at work, when insurance payments are made to an employee in connection with damage to health in the manner of compulsory social insurance. The concept of an industrial accident is given in the Federal Law of July 24, 1998 "On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases" (SZ RF. 1998. N 31. Art. 3803).

Occupational accident - an event as a result of which the insured received an injury or other damage to health in the performance of his duties under an employment contract and in other cases established by this law both on the territory of the insured and outside it, or during the journey to the place of work or return from the place of work on the transport provided by the insured, and which led to the need to transfer the insured to another job, temporary or permanent loss of his professional ability to work. Since the term "labor injury" is not used in this Law, it is obvious that when determining the benefits of the second level, the concept of industrial injury considered above should be taken as a basis.

Norm on the priority right of disabled veterans of the Great Patriotic War of great importance does not have, since there are practically no workers who have reached such an advanced age. At the same time, when defining this category, one should be guided by Art. four federal law"About Veterans".

The circle of employees who improve their qualifications on the job and enjoy the preferential right to stay at work in the event of a reduction in the number or staff of employees has narrowed. Now they include only those employees who improve their skills in the direction of the employer on the job. At the same time, the form of education and the type of institution vocational education do not matter (see comments to chapters 31 and 32 of the Labor Code).

§ 3. When determining the benefits of the second level, a situation may arise when all employees belong to one or another category from those specified in Art. 179. Since their advantages are equal, then, apparently, preference should be given to those of them who simultaneously belong to several of the named categories. If there is no such criterion, then the employer has the right to give preference to any of these employees, and the labor dispute body obviously cannot review the decision of the employer.

§ 4. Art. 179 does not indicate many categories of workers from those that were provided for in Art. 34 of the Labor Code of the Russian Federation, for example, wives (husbands) of military personnel; citizens discharged from military service; persons affected by the accident Chernobyl nuclear power plant, accident liquidators and some others.

The exclusion from the Code of the spouses of military personnel and citizens dismissed from military service does not deprive them of the pre-emptive right to remain at work in the event of a reduction in the number or staff of employees, since this right is provided for by Art. 10, 23 of the Federal Law of May 27, 1998 "On the status of military personnel" (SZ RF. 1998. N 22. Art. 2331). This Law also provides for this right for single mothers of military personnel undergoing military service by conscription (Article 23).

Citizens who have received or suffered radiation sickness and other diseases associated with radiation exposure as a result of the Chernobyl disaster or with work to eliminate the consequences of the disaster at the Chernobyl nuclear power plant, as well as disabled people as a result of the Chernobyl disaster, have a preferential right to remain at work in case of a reduction in the number or staff on the basis of Art. . 14 (p. 13) of the Law of the Russian Federation "On the social protection of citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant", as amended on June 18, 1992 (Vedomosti RF. 1991. N 21. Art. 699; 1992. N 32. Art. 1861).

Important is the provision enshrined in Part 3 of Art. 179, that the collective agreement may provide for other categories of workers who enjoy the preferential right to remain at work with equal labor productivity and qualifications. Obviously, the employer can give preference to other categories of employees specified in the collective agreement in leaving at work only if there are no employees enjoying this right by virtue of the Code or other laws.

Reduction of staff is carried out by an enterprise or organization in in due course by reducing the number of employees. The fact of the reduction is confirmed by the issuance of the Order on the new staffing on the enterprise and making appropriate changes to it. The dismissal procedure is carried out only after the approval of the Order.

In order for the layoff to become legal, the management of the enterprise must comply with all the requirements of the Labor Code:

Downsizing really needs to take place.
The management of the enterprise personally (under the signature) in writing must warn each individual employee about the upcoming dismissal.
The dismissal of an employee in connection with a reduction in staff must be carried out in accordance with the requirement of the law on categories of persons with preferential rights to remain at work.
It is necessary, if possible, to transfer the employee to another position or job.
Not later than three months before the dismissal of the employee, the local employment center should be warned.
Get consent to the reduction of the trade union body.
Make payments of compensation and severance pay.

By law, the new staff list must indicate the actual reduction of workers. You cannot hire a new employee for a reduced position.

All dismissed employees are warned personally (on receipt) about the upcoming dismissal at least two months before the start of the reduction procedure.

The warning time is documented. On the general Order on the reduction of staff (or on the issued separate order for the employee), there must be a personal signature of each dismissed employee.

The following categories of employees can take advantage of layoffs due to redundancy:

Persons, except for whom there are no other members with independent income in the family.
Employees who got a job at their last job occupational diseases or work injury.
Disabled combatants who were injured while performing their duty to defend the Fatherland.
Employees who improve their skills on the job in the direction of the enterprise.
Family, supporting two or more disabled family members.

Abbreviations are not allowed:

Employees on vacation.
Temporarily disabled employees on the basis of a certificate from a medical institution.
Women whose children have not reached the age of three.
Mothers who alone are raising a disabled child under the age of 18.
Mothers who independently raise children under 14 years of age.
An employee under the age of 18 is dismissed only in agreement with the relevant state bodies.

Information about the upcoming reduction must be provided to the trade union body and to state center employment of the population no later than three months before the start of the reduction procedure.

Transfer to another place of work

The dismissal of an employee to reduce staff is possible when the enterprise does not have the opportunity to transfer him to another position or job. Labor law obliges the employer to writing to offer the employee a vacancy in the same enterprise, corresponding to his qualifications. If there is no such job, offer a less paid job or a lower position. If the employee refuses the existing offers, the employment contract is terminated with him. Refusal of the proposed work must be accepted in writing and with the personal signature of the reduced employee.

Payment of severance pay upon reduction

An employee's retirement benefit is calculated in the amount of one average monthly salary. Also, for the period of employment, the employee retains his average monthly earnings for a period of up to two months from the day of reduction (including severance pay). If during this time the employee is not employed (in this case, the employment service issues a certificate, which is a supporting document), the average monthly salary is paid to the dismissed employee also for the third month after the reduction. This provision does not apply to an employee who applied to the state employment service after a two-week period after the reduction.

The employer may terminate the employment contract with the written consent of the employee without a notice of reduction in two months. In this case, additional compensation funds are paid in the amount of two months' wages of the dismissed employee.

AT additional payments does not include the severance pay required by labor law upon dismissal.

The basis for termination of the contract is a written application of the reduced employee with a request for dismissal. The presence in the document of the date and personal signature of the dismissed employee is mandatory.

What to do if your rights have been violated

Unscrupulous employers, when reducing staff, in order to save money and not pay severance pay, try to dismiss the employee under some other article of the Labor Code. Such a dismissal is illegal from a legal point of view, therefore, very often people turn to legal advice or lawyers for help to protect their legal rights in a court. You can contact the prosecutor's office or the labor inspectorate. To do this, you must draw up a statement of claim, which can only be filed within one month from the date of dismissal.

Change organizational structure and staffing of the organization to implement effective economic activity and sound management of property is the exclusive right of the employer (). At the same time, labor legislation provides for a number of mandatory requirements aimed at compliance labor rights and the legitimate interests of the laid-off employees - for example, the employer is obliged at least two months before the dismissal to warn the employees personally and against signature about the upcoming dismissal, and then offer the employee another job available in the organization or the individual entrepreneur (vacant position) that he can perform with considering his state of health. It should be clarified that an employee can be offered both a vacant position or a job corresponding to his qualifications, and a vacant lower position or underpaid job, which the employee can perform taking into account the state of health ().

But before performing these actions, the employer should determine which of the employees has the priority right to leave at work. This right is granted to employees with higher labor productivity and qualifications ().

To do this, the employer needs to have objective information about the labor efficiency and qualifications of the employees to be laid off. I recommend creating a commission that will collect and analyze the necessary data. It is not established by law who should be a member of such a commission, but according to established practice, personnel workers, lawyers, and, if there is a trade union body, its representative, are included in the commission. However, sometimes, depending on the size of the organization, only one personnel worker or even the head of the department.

Responsible employees or the manager himself collect information about the qualifications of employees and their productivity.

This data is then compared with qualifications established by the Qualification Directory of Positions and professional standards- this is how the compliance of employees with their positions in the organization is determined.

If the position is not contained in Qualification Handbook positions or professional standards have not yet been developed for it, the employer assesses the compliance of employees with the requirements established in the employment contract or job description this vacant position.

It is not uncommon for workers to have equal labor productivity and qualifications, and then according to preference should be given to workers:

with a family, if there are two or more dependents, or if there are no other self-employed workers in the family;
who received an industrial injury or occupational disease during the period of work with this employer;
improving their qualifications in the direction of the employer without interruption from work;
as well as the invalids of the Great Patriotic War and the invalids of military operations for the defense of the Fatherland.

If an employee belongs to one of these categories, but was fired anyway, he can appeal the dismissal in court. If the claim is satisfied - and the likelihood of this is quite high - the employer will have to reinstate the employee in his previous position with payment for forced absenteeism ().

The advantage of one employee over another must be proven by the employer, through objective data and the availability required documents employees: education documents, work book, certificates of qualifications, characteristics, etc. At the same time, the deadlines for the provision of relevant documents by employees in domestic legislation are not established, and the employer can determine them independently - for example, by indicating in a notice of a reduction in the number or staff of employees.

The establishment of short periods (for example, a week) entails certain risks for the employer if employees provide documents after their actual dismissal. The courts do not recognize such actions of employees as an abuse of the right, if it is established that the employer did not explain to the employees their rights or set too much short time to present documents. In addition, the employer cannot refer to the fact that he did not know about the benefits of a particular employee, if he did not offer him to provide supporting documents at all (,).

Thus, when carrying out measures to reduce the number or staff, it is necessary to carefully approach the issue of the priority right of employees to remain at work.

One of the most important stages in the procedure for reducing the number or staff is the establishment of the preferential right of employees to remain at work. Without it, dismissal due to layoffs will be illegal. Let's consider in what cases it is required and how it is carried out.

Labor legislation on layoffs

The Labor Code of the Russian Federation regulates the issues of reduction in several articles located in different chapters:

p. 2 h. 1 art. 81 of the Labor Code of the Russian Federation establishes as the basis for the dismissal of an employee at the initiative of the employer, the reduction in the number / staff of employees carried out in the organization; part 3 of the same article talks about the procedure for reducing an employee;
Art. 82 of the Labor Code of the Russian Federation regulates the procedure for taking into account the opinion of the trade union body on the dismissal of the laid-off employee;
Art. Art. 178 - 180 of the Labor Code of the Russian Federation are devoted to guarantees and compensations for laid-off workers, including the issues of establishing benefits for staying at work in case of reduction.

The concept of the contraction procedure and its excitation

The law understands the reduction of interconnected events:

changes in the organization's staffing table, as a result of which the number of staff units for one position is reduced (for example, there were three sales managers in the department, there were two) or excluded from the staffing table structural units or individual positions (both vacant and occupied by employees). The first is called downsizing, the second is downsizing;
dismissal of employees whose positions fell under the reduction in the new staffing table.

The beginning of the procedure is the adoption by the employer of a decision to reduce the number / staff of employees, which may take the form of an order from the head, less often - a protocol (decision) of a collegiate executive body.

Often, the same order creates a reduction commission (taking into account the preemptive right of employees).

Based on this document, changes are made to the organization's staffing table.

Such an order (decision) usually includes:

structural subdivisions, positions or staff units subject to exclusion from the staff list;
the timing or specific date of their exclusion;
creation of a commission or appointment of persons responsible for the implementation of the reduction procedure.

Priority right to stay at work

After making a decision to reduce the number or staff, the commission either responsible person establishes the preferential right to leave at work employees whose staff units have been made redundant.

You should know that its detection is possible only in cases of reduction in numbers. The benefits of downsizing (one or more positions) do not matter and are not clarified, since only the productivity and qualifications of workers performing the same labor functions can be compared with each other.

Initially, it is established which of the laid-off workers has higher labor productivity.

The Labor Code of the Russian Federation does not disclose the concept of labor productivity. In practice, it is believed that more high performance labor has an employee who qualitatively (without marriage) performs a greater amount of work in an equal period of time in comparison with other workers with the same labor function.

If labor productivity is the same, then Part 1 of Art. 179 of the Labor Code of the Russian Federation leaves an advantage in case of reduction for an employee with a higher qualification.

Under the qualification of Art. 195.1 of the Labor Code of the Russian Federation understands the employee's level of knowledge, skills, professional skills and work experience.

In cases where both the performance and the qualifications of the reduced are the same, the rules of Parts 2 and 3 of Art. 179 of the Labor Code of the Russian Federation on preference for employees to stay at work:

having two or more disabled dependents;
in whose family there are no other workers with independent earnings;
previously received from this employer a labor injury or occupational disease;
who are invalids of military operations for the defense of the Fatherland;
improving their qualifications in the direction of the employer without interruption from work;
relating to categories, the preferential right of which to remain at work is enshrined in the collective agreement of the organization.

Such a benefit in case of reduction is often granted, for example, to employees of the employer of pre-retirement age.

Job loss is the biggest problem that can be caused by the financial and economic crisis. To get out of a difficult financial situation, organizations resort to optimization production process. As part of the optimization, staff reductions are often made. Who can't be made redundant? What rights does a reduced employee have? What is the responsibility of the leadership of the organization?

What is downsizing?

Employees is a procedure for the abolition of positions (one or more), carried out in accordance with labor legislation. One of the methods of reducing units is the elimination of vacancies. The staffing table is the main evidence confirming the fact of a reduction in the number of employees. If the organization does not have a staffing table, then the payroll or list of employees can also act as a supporting document.

Legal downsizing

Russian labor legislation regulates the procedure and determines the grounds for layoffs. So, the employer can dismiss employees due to a reduction in the number of staff units, reorganization or liquidation of the enterprise. At the same time, the employer himself determines the optimal number of employees of the organization. By law, the employer is not obliged to justify the decision to dismiss an employee for reduction, however, formally, the procedure should be carried out on the basis of the Labor Code of the Russian Federation (Articles 82, 179, 180, 373). It is possible to dismiss an employee of an organization due to a reduction in the number of employees only when the position he occupies is liquidated.

Wrongful downsizing

In practice, there is often an illegal (imaginary) staff reduction, which has no real reasons. This procedure is illegal. Employers resort to this method when they need to fire an employee, but there are no real reasons for this. If the procedure for terminating contracts is carried out incorrectly or if it is not observed, the reduction is also considered unlawful. The rights of the dismissed person in this case can be defended in court. However, in practice it is quite difficult to convict employers of illegal actions.

How to get fired

This procedure consists of several stages.

Who can't be fired

In Russian labor legislation, there is a list of those employees who cannot be fired due to staff reduction. Who can't be fired?

Women with children under 3 years of age.
Women on parental leave (Labor Code of the Russian Federation, Article 256).
Single mothers with children under 14 years old (if a disabled child - up to 18).
Persons raising children under 14 years of age without a mother (if a disabled child - up to 18, article 261 of the Labor Code of the Russian Federation).
Employees of organizations on vacation or sick leave.
Minors without the consent of the state labor inspectorate.

Also, according to the Labor Code of the Russian Federation (Article 256), parental leave can be granted until the child reaches the age of 3 at the request of the mother. Workplace and the position in this case is reserved for the woman.

Can a pregnant woman be fired on the basis of a layoff? Such dismissal is considered illegal. As stated, dismissal is permissible only upon liquidation of the organization.

The only exceptions are cases where the reduction takes place as part of the liquidation of the enterprise.

Who has the benefits

In addition to the list of those who cannot be fired due to staff reduction, in Labor Code There is also such a thing as "preferential right". According to Article 179 of the Labor Code, this right gives employees of organizations an advantage in retaining their jobs during staff reductions, depending on the quality of their work duties or social reasons. These workers are the last to leave.

Employees with a high level of qualification and labor productivity have a preferential right. Work experience and education are also taken into account. Qualifications must be supported by certificates of completion educational institutions, certificates of advanced training, extracts from the protocols of commissions on the assignment of a category or category, etc. To assess the level of qualification of employees, the management of enterprises can conduct certification, including unscheduled. However, the procedure for conducting such certifications should be reflected in the internal documents of the organization. If all employees have equal qualifications and labor productivity, the manager makes a decision on dismissal together with the trade union organization.

Employees also have the priority right to retain their jobs:

Containing two or more dependents (family circumstances).
Who independently support their family (there is no other source of income other than the salary of this employee).
During the period of fulfillment of labor obligations, injuries or occupational diseases from the employer conducting the reduction.
War invalids.
Improving qualifications without interruption from labor process in the direction of leadership.

The collective agreement may also establish other categories of employees with the preferential right to retain their jobs.

Features of dismissal to reduce pensioners

Often in Russian organizations persons who have reached retirement age also work. However, age is not the reason for the primary reduction. Article 179 of the Labor Code states that age can also be an advantage for an employee, since it can be an indicator of high qualification and productivity.

It says that pensioners should be provided with all guarantees and payments upon dismissal for reduction. Other interpretations of these legislative norms contradict the principles of equal rights of workers and non-discrimination in the sphere of work.

Reduction payouts

According to 140 upon termination labor relations with an employee, the management of the organization must settle with him and pay all the money due. Payments must be made after the employee submits the relevant request no later than the next day.

If an employee is fired due to a reduction in staff, he necessarily receives a severance pay, the amount of which is equal to the average earnings for the month. Within two months, the employee is paid severance pay for the duration of the search suitable job. This payment can also be made for the third month if the dismissed employee applies to the employment service within 14 days after the termination of the employment contract and does not find a suitable job.

Additional compensation is paid to employees who were laid off without warning and in agreement with the employer. The amount of the payment is determined by the amount of the average monthly earnings, calculated in proportion to the time left before the expiration of the notice of reduction. Pensioners, as mentioned above, are paid all compensation, as well as ordinary workers. The head, his deputies, the chief accountant are paid compensation in the amount of at least three average monthly salaries.

In addition, employees dismissed due to staff reductions are entitled to payment for the days worked in the current month and compensation for unused days holidays.

The amount of the severance pay can be disputed. In this situation, the organization pays the employee an undisputed part of the amount. The remaining part is paid on the basis of an agreement between the employee and management or by a court decision.

Alternative

An alternative to the dismissal of employees for reduction is the termination of labor relations by agreement of the parties. First of all, this is beneficial for the employer, since he is exempted from paying additional compensation and severance pay, the likelihood of appealing the procedure in court is minimized, and there is no need to notify the trade union, the employment service. In addition, the list of those who cannot be fired due to staff reduction does not apply to this procedure.

Employers often force their employees to quit own will. Thus, the employee is also deprived of severance pay and compensation, which he is entitled to during the reduction.

Employer's responsibility

Employers are liable in case of violation of the rules of the procedure for dismissal of employees in the event of a reduction in the number of staff. In case of violation of the terms of payments, according to Article 236 of the labor legislation, the employer is obliged to reimburse, in addition to the entire amount of money due to the employee, interest amounting to at least one three hundredth of the refinancing rate of the Central Bank of Russia for each day of delay. The same sanctions apply to employers in case of delay in payment of wages. If the employer does not fulfill the obligation to provide the dismissed employees with the available at the enterprise vacancies, this threatens him with a fine of 5-50 times the minimum wage in accordance with Article 5.27 of the Administrative Code.

What to do when cutting

If you were fired for a reduction, what to do? You can contact several authorities. To get started, you can send a written application to the trade union organization of the enterprise. The trade union is obliged to respond to the complaint within a week. A wrongful layoff incident may be reviewed by the Federal Labor Inspectorate and the Attorney's Office. If the labor inspectorate did not reveal violations of the procedure, a lawsuit can be filed. This can be done within a 90-day period from the moment the employee became aware of the violation of their labor rights. If the dismissed employee decides to challenge the termination of the employment contract, the claim must be filed within 30 days from the date of issue of the work book or a copy of the relevant order. Wrongfully dismissed employees do not pay duties and other legal expenses. If a redundancy dismissal is recognized as unlawful, the employee is reinstated at the previous workplace by the body that was authorized to consider the labor dispute. In this case, the employee is compensated for the average wages for the time of forced absenteeism or the difference for the period of low-paid work, as well as moral damage.

Dismissal due to a reduction in the number of employees in an organization can affect everyone. Therefore, it is so important to know the list of those who cannot be fired due to redundancy and who have a preferential right to retain their jobs. These issues are fully regulated by Russian labor legislation. The decision of the employer to dismiss on the basis of reduction can be challenged as in judicial order, and when applying to the trade union, the prosecutor's office, the Federal Labor Inspectorate. Russian labor legislation regulates the rights of a laid-off employee. If you have any difficulties, you should seek the help of a competent lawyer.