How to properly resign. Conditions for the “correct” reduction

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

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

Basic concepts and terms

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

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

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

Legislation on dismissal due to staff reduction

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

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

Who can be laid off?

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

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

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

Categories of personnel not affected by dismissal due to staff reduction

The reduction in staff does not affect the following categories:

• Parents of children with disabled status.
• Mothers and fathers raising children on their own (single).
• Parents large families until the time youngest child will not be 14 years old.
• Citizens who are the sole breadwinners of their families.
• Employees who have suffered an occupational injury or illness as a result of their work at that company.
• Disabled people who suffered as a result of wars, the Chernobyl disaster or the Semipalatinsk tests.
• Employees of the company who have awards (Hero of the USSR, Knight of the Order of Glory) or the title of inventor.
• Workers who combine their work labor functions with training.

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

Also, employees of the enterprise who are on sick leave, regular leave or maternity leave. True, this can be done with their written consent or upon complete liquidation of the company.

How retirees and part-time workers are laid off

The Labor Code of the Russian Federation (Article 3) contains a ban on employer discrimination based on age. Most often this concerns employees who have reached retirement age and continuing to fulfill their job responsibilities. If necessary, they will also be affected by staff reductions, but their use social status as grounds for dismissal is illegal.

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

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

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

Why do employers resort to layoffs?

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

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

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

What rules must an employer follow when reducing staff?

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

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

How staff reduction occurs: step-by-step instructions

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

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

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

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

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

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

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

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

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

Payments to certain categories of personnel

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

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

What will be indicated in the work book

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

Certification of the record that employment contract when torn, the signature of the HR department employee (who keeps the work books) and the employee being dismissed becomes signed, as well as the seal of the manager.

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

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

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

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

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

Professions at risk

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

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

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

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

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

At the legislative level, the procedure for releasing employees in connection with personnel optimization is spelled out in sufficient detail, because termination of cooperation occurs at the initiative of the employer, and therefore laid-off employees have the right to a number of additional guarantees and benefits upon dismissal due to staff reduction, step-by-step instruction which is presented below.

Normative base

The reduction of an employee under the Labor Code of the Russian Federation is regulated by Article 81 Part 2, according to which an employee can be dismissed at the initiative of management during staff optimization.

According to accepted standards the release of a worker is allowed only if there is no vacant position at the enterprise, or the employee refuses to be transferred to a lower vacancy with lower qualification requirements or with a lower salary level.

If the enterprise has several branches located in different populated areas, transfer of an employee to another location is permitted only with his consent, and on the basis of the conditions specified in local acts enterprises, in collective agreement or in the Regulations.

Procedure for dismissal due to staff reduction provided for in Article 180 of the Labor Code of the Russian Federation, which, in particular, states that the manager is obliged to notify the employee of the upcoming release two months before the termination of the employment relationship in writing.

The employee, in turn, has the right to terminate the cooperation early, without waiting for the end of the two-month period, while he retains the right to receive compensation in connection with the reduction in the amount provided for by law.

What does an employee lose by resigning voluntarily? Video:

How to lay off an employee due to staff reduction?

It should be noted that dismissing an employee due to redundancy is not as simple as it seems at first glance. The fact is that such dismissal involves a rather complex procedure with strict adherence to the deadlines for issuing the relevant documents and the procedure for their execution.

In case of violation of one of the conditions, the employee may challenge such dismissal in judicial procedure and be reinstated in their previous position, and also demand compensation for moral damages and for obstacles in receiving earnings due to the fault of the company’s management.

Step-by-step procedure for laying off an employee as follows:

1. issuing an order on staff optimization;
2. notification of the Trade Union;
3. issuing an order to notify employees of the upcoming dismissal;
4. notification to the Employment Service;
5. delivery of notice to the employee.

The basis for the reduction of employees is officially issued order to optimize staff on the basis of a memo or report from the head of the department indicating the list of positions that, for one reason or another, are subject to reduction.

Then, in accordance with Article 82 of the Labor Code of the Russian Federation, management is obliged to notify the Trade Union of the upcoming release of positions indicating the number of employees.

If there is a mass layoff of workers, say, an entire department or branch, the Trade Union workers must be notified three months before the release of personnel.

By the way, mass dismissal is considered to be termination of employment relations. with more than 5% of employees of the total number.

If only a few workers are being laid off, the Union must be notified two months in advance.

Then the manager makes a decision to dismiss specific employees in accordance with the proposals of the heads of departments, for which a corresponding order is issued indicating positions and the date of reduction, as well as with the condition of written notification of employees who are subject to reduction. The order is issued at least two months before the termination of the employment relationship.

Based on the issued order, it is drawn up indicating not only the date of dismissal, but also offering vacant positions that he could occupy, taking into account qualifications and health status.

The employee, in turn, having received the notice, must carefully read it, and then sign and date it, thus confirming the fact of familiarization with the upcoming dismissal and starting the countdown of the two-month period before dismissal.

Simultaneously with notifying the employee, the enterprise is obliged to notify the employment service about the upcoming dismissal, on the basis of Federal Law No. 1032 - 1 of April 19, 1991, since the said institution also needs time to select vacant positions that could be filled by dismissed employees after a two-month period.

Preemptive right of retention

In accordance with the norms of Article 179 of the Labor Code of the Russian Federation, when selecting candidates to be reduced, in a number of cases it is used right of first refusal, which is used when reducing identical positions. For example, if there are several economists or accountants who have similar responsibilities and qualifications.

When choosing an applicant for dismissal, management evaluates, first of all, the labor productivity of each employee, qualifications, for example, the presence of the first or second category, length of service in the position held and experience in this field in general.

If the indicators are equal, it is estimated Family status employee, in particular, the presence of minor children or disabled dependents who are fully financially supported by the worker.

Also, an advantage is given to persons who were injured at work at an enterprise, were sent to advanced training courses at the expense of the employer and without interruption from work, or are combat veterans.

Reduction of staff, dismissal procedure, step-by-step instructions

Unlike initiating the procedure for laying off an employee, the dismissal process is not very different from terminating an employment relationship for other reasons. In particular, step-by-step dismissal procedure as follows:

1. notification of the Trade Union;
2. issuance of a dismissal order;
3. issuance of settlement payments;
4. filling out a work book.

If a trade union member of an enterprise is to be dismissed, then such a procedure must be agreed upon with the Trade Union organization on the basis of Article 373 of the Labor Code of the Russian Federation.

The mentioned norm states that when making a decision to dismiss a trade union member, management is obliged to send a draft order, as well as the reasons for dismissal recorded in writing, for consideration by the Trade Union organization and for them to make a reasoned decision on the legality of termination of the employment relationship.

In turn, the Trade Union must review the submitted package of documents within 7 days and send its decision, which will be taken into account when dismissing the employee. If a decision is not made within the agreed period, the employee is subject to dismissal in accordance with the general procedure, but if a decision is made to refuse dismissal, the parties are given three more days to resolve differences.

If the employee being laid off is not a member of the Trade Union, then his dismissal is carried out in general order on the basis of Article 84.1 of the Labor Code of the Russian Federation taking into account the basis for release. That is, after a two-month period from the date of notification of the employee about the upcoming termination of cooperation, the enterprise publishes it with reference to Part 2 of Article 81 of the Labor Code of the Russian Federation.

Having received the order to terminate the employment relationship in hand, the employee gets acquainted with it and signs accordingly, thus expressing agreement with the prevailing circumstances.

If the employee refuses to sign the order, it is read out loud in the presence of two witnesses, who then sign the act of refusal, confirming the fact of familiarization with the dismissal order.

On the day of dismissal, in accordance with Article 140 of the Labor Code of the Russian Federation, the enterprise is obliged to make a full financial settlement with the dismissed employee, paying all due compensation for dismissal due to staff reduction and wages from the date of the last payment.

Then, on the basis of the issued order, in work book a corresponding record of dismissal is made, giving the grounds for termination of the employment relationship, and the agreed document is handed over to the employee.

If an employee was absent from the workplace on the last working day, which, by the way, is considered the day of dismissal due to objective reasons, he is sent a notification in accordance with the norms of Article 84.1 of the Labor Code of the Russian Federation.

Dismissal of an employee due to reduction, video:

Early dismissal due to staff reduction

If an employee, having received a notice of job reduction, expressed a desire to terminate the employment relationship early, that is, earlier than the date specified in the notification, on the basis of Article 180 of the Labor Code of the Russian Federation, management cannot refuse him this.

However, given that the employer is still the initiator of dismissal, at the legislative level compensation is provided for the dismissed employee. That is, the company is obliged to compensate the employee for time, remaining until release in the amount of average earnings for each day.

The fundamental issue in this situation is the wording of the resignation letter, given that the termination of the employment relationship occurs ahead of schedule and at the initiative of the employee himself. In particular, the employee does not ask to be fired, but agrees to terminate the contract and asks to terminate cooperation early on the basis of Article 180 of the Labor Code of the Russian Federation, with payment of the required compensation.

What payments and compensations are due upon redundancy?

The procedure for making payments when laying off an employee is regulated by the norms of Article 178 of the Labor Code of the Russian Federation, which, in particular, states that the company is obliged to pay a severance pay to an employee subject to layoff in the amount of not less than the average monthly earnings.

In some cases collective agreement payments may also be provided for larger size, for example, in the form of three salaries or two average earnings per month.

For certain categories of employees, the amount of severance pay is set in a larger amount at the legislative level, and not just at the local level. In particular, upon dismissal due to reduction of the head of the enterprise, benefits are paid in the amount of at least three times average earnings based on Article 279, and under the terms of the collective agreement, it is possible to establish a larger size.

In addition to severance pay, the company is obliged to pay the employee also compensation for everything unused vacations , as stated in Article 127 of the Labor Code of the Russian Federation, and wages from the moment of the last payment.

If the employee does not agree with the amount of payments and believes that the amount should be greater, he has the right to apply to the court for resolution of the issue within three months from the date of dismissal, and on the day of dismissal he is required to pay the amount that is not the subject of disagreement.

Categories of employees not subject to redundancy

Despite personnel policy enterprises and the desire to dismiss some employees for a number of reasons that are not always justified, there is a category of workers who are practically impossible to lay off in the manner prescribed by law, namely, It is prohibited to lay off a pregnant woman when reducing staff on the basis of Article 261 of the Labor Code of the Russian Federation, the only exception is the complete liquidation of the enterprise.

Also, employees who have children under three years of age or fathers who are raising children themselves cannot be fired due to layoffs.

Cannot be reduced and single mothers or single fathers raising a disabled child or a child under 14 years of age.

You cannot fire employees who are the sole breadwinners of a family if they have at least three children, the youngest of whom is under 3 years old.

However, the stipulated article also allows for exceptions, that is, the specified categories of employees may be dismissed due to staff reduction if a number of violations are committed.

In particular, they were involved in disciplinary liability due to repeated violations of labor discipline or failure to fulfill their immediate duties, or perhaps committed an immoral act.

Some nuances of staff reduction

Often, even with clearly stated dismissal procedure due to reduction Situations arise when it is not possible to dismiss an employee within the period established in the notice, in particular, if the employee is ill at the time of dismissal and, in accordance with Article 81 of the Labor Code of the Russian Federation, he cannot be fired.

By the way, the legislation establishes a minimum notice period for an upcoming layoff, namely two months, but nowhere is there a ban on dismissal for more than late date, again which is applicable in the case of temporary disability.

A similar dilemma during dismissal due to reduction may arise when providing the employee with annual leave. In particular, the norms of Article 123 of the Labor Code of the Russian Federation oblige both the employee and the manager comply with the vacation schedule, therefore, the laid-off employee, at the time of layoff, may not work, but rest, and again, on the basis of Article 81 of the Labor Code of the Russian Federation, he cannot be fired during this period.

However, as mentioned above, some categories of employees are subject to a preferential right to remain, due to high qualifications and work experience, as well as long service, which can become decisive factors when choosing a redundant employee.

Considering that employees of retirement age, as a rule, are qualified workers and have decent length of service, as well as work experience, they have every chance of keeping their jobs.

Also, often, many employees believe that they are paid in the amount of three months’ earnings, which is an erroneous opinion. Three month old average earnings can be paid only if such a condition is provided for in the collective agreement; in other cases, upon reduction, the employee is paid severance pay in the amount one average salary.

The right to receive benefits for the second month after dismissal former employee arises only if he does not find a job officially within two months and presents a work book without a record of new employment.

But the benefit for the third month is paid in exceptional cases and only by decision of the Employment Service, provided that the dismissed employee is registered with them within 14 days from the date of dismissal, and they were unable to employ him for objective reasons.

Questions also arise among workers who were terminated in violation of procedure, in particular, what are their chances of being reinstated in their previous position. As judicial practice shows, in most cases, the court takes the side of the employees, obliging the employer not only to provide the former place of work, but also to pay compensation for deprivation of the right to work, and therefore to receive income.

As a rule, the trial lasts from several months to six months, and if the issue is resolved in favor former employee, the enterprise will be required to pay both compensation for moral damage and compensation for interference with work for all days from the date of dismissal, and calendar days, not working days.

That is why every leader needs to be more attentive to the procedure for dismissing employees in connection with staff optimization and strictly comply with all legal norms.

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

Concept of downsizing

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

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

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

Dismissal due to staff reduction, sample procedure

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

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

Grounds for carrying out the staff reduction procedure

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

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

Preemptive right

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

Preferential rights arise when an employee has higher productivity or qualifications than other employees occupying the same positions. At equal conditions There are a number of reinstatement preferences:

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

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

When not to cut

Dismissal cannot be applied to an employee if:

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

Reduction of minors

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

Reduction of pensioners

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

Step-by-step dismissal due to staff reduction

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

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

Compensation payments

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

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

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

Reduction of union workers

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

• Draft order on reduction.
• Written justification of the reasons.

If the trade union organization does not agree with the manager’s decision and within the specified 7 days has submitted its opinion to him, then a dialogue can be organized between the employer and representatives of the trade union organization about the feasibility and legality decision taken. In this case, the union is obliged to provide solutions to the manager within the next three days. If general solution is not accepted, the employer reserves the right to make a final decision, which can be challenged in court.

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

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

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

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

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

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

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

A significant number of documents will have to be completed by the HR officer if the organization is undergoing a procedure for reducing the number of employees or personnel. At the same time, there are documents that he will have to draw up in any case, and there are those that are drawn up only in some situations, but also quite often.

Main composition of documents

Just as a theater begins with a hanger, so “organizational” actions begin with an order, on the basis of which reduction measures will be carried out and drawn up Required documents. The order to reduce the number (and/or staff) must contain the date of the proposed reduction, since the employer is obliged to warn the employees who will be affected by this no later than two months in advance. Having looked at the State Statistics Committee’s resolution No. 1 dated January 5, 2004 “On approval of unified forms of primary accounting documentation for recording labor and its payment” and making sure that there is no standard form for such an order, we draw it up in a free form (see Example 1).

Read about the downsizing procedure through the eyes of judges in the article “The downsizing procedure for an organization: judicial practice”

For your information

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Downsizing and downsizing - different concepts. When staffing is reduced, a position or profession (for example, driver) is excluded from the staffing table. By reducing the number, the personnel officer only reduces the number of staff members who occupy a certain position (or work by profession). At the same time, the position (profession) itself remains (for example, there were five drivers, and after the reduction in number there were two left).

Therefore, in practice the following may occur:

• reduction in numbers and staff;
• staff reduction (when only vacancies are excluded from the staffing table);
• reduction in numbers.

Example 1

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The next stage is drawing up notifications about the upcoming layoff for employees (see Example 2) and the employment service (see Example 3). Employees should be notified in writing and with a personal signature no later than two months before the planned termination of the employment contract; if there is a mass dismissal, then no less than three months in advance (Article 180 of the Labor Code of the Russian Federation).

Clause 2 of Art. orders to notify the employment service. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment of the population in Russian Federation" This must also be done no later than two months before the start of the layoff (if there is a massive layoff, then no less than three months in advance), indicating the position, profession, specialty, qualification requirements and conditions of payment for workers. The criteria for mass dismissal are determined in sectoral and (or) territorial agreements. If they are not in the relevant agreements, you should be guided by the Decree of the Government of the Russian Federation dated 02/05/1993 No. 99 “On the organization of work to promote employment in conditions of mass layoffs.”

The law does not specify which territorial body should be notified - at the place of registration of laid-off workers or at the location of the employer. However, the resolution of the Moscow City Statistics Committee dated May 26, 1997 No. 4 “On approval of the form of regional state statistical observation” approved the form according to which information about employees released during the process of reduction (liquidation of the organization) should be submitted to the employment service at the place of registration of the organization. For a sample of filling out the form, see Example 3. In other regions, forms approved by local statistical observation authorities are used. If there is no approved form, the notification can be drawn up in any form (see Example 4).

Example 2

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Example 4

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Since unemployment benefits for a laid-off worker will be calculated based on the average earnings received by him over the last three months, the employment service requires the provision of a corresponding certificate from the place of work. As a sample, you can take the form of a certificate of average earnings, approved by order of the State Service for Social Protection of the City of Moscow dated August 10, 2007 No. 172.

Read more about preparing a certificate of average wages for employment authorities, read the article “We issue a certificate for the employment service” on page 44 of magazine No. 9” 2012

On the last working day (also the day of dismissal), the personnel officer fills out a dismissal order to reduce the number and/or staff in Form No. T-8, approved by Resolution of the State Statistics Committee of Russia dated 01/05/04 No. 1 (Example 5), and makes an entry in the work book (Example 6). The final payment is made to the employee for wages and other payments due to him on the date of dismissal (Part 4 of Article 84.1 of the Labor Code of the Russian Federation).

Example 5

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Example 6

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What else might you need?

In some cases, what other documents will the HR officer have to complete when making a reduction? So, if an employee refuses to sign a notice of layoff, an act should be drawn up (see Example 7). This paper is drawn up in the presence of two witnesses and is proof that the employee was notified of the upcoming dismissal.

In addition, if the organization has an elected body of the primary trade union organization (hereinafter referred to as the PPO), the law requires that it also be notified (Example 8). According to Art. 82 of the Labor Code of the Russian Federation, this must also be done no later than two months (in case of mass release of workers - no less than three months) before the intended dismissal.

If the redundant employee is a member of a trade union, then a notification should be sent to the elected body of the PPO before issuing an order and a reasoned opinion should be requested in the manner prescribed by Art. 373 Labor Code of the Russian Federation.

In conditions where an employee is simultaneously the head (deputy head) of an elected collegial body of a trade union organization, an elected collegial body of a trade union organization of a structural unit of an enterprise (not lower than a shop unit or equivalent to them), he can be dismissed only with the prior consent of the corresponding higher elected trade union body (Article 374 Labor Code of the Russian Federation).

This is a long and very responsible process for any employer. Because it involves notification of persons subject to layoff two months before the date of its implementation, as well as payment to them of all due funds, which must be issued on the last day of work. In addition, the employer must offer available vacancies to this category of subordinates, and also not allow the hiring of new people.

Preparing for downsizing

Before carrying out layoffs due to staff reductions, the employer must fulfill several conditions:

Change the existing staffing table or approve a new one, which would show the impossibility of expanding the staff beyond the positions assigned to it;

Notify subordinates about this 2 months in advance;

Offer workers other vacancies that are available in the organization;

Notify employment authorities within the period specified by law.

If a citizen already knows in advance that there is a layoff at work and that he is subject to it, then he can immediately discuss this issue with his manager. After all, you can receive all the necessary payments earlier than two months and quickly find a new vacant position, if, of course, you can’t stay in your current position.

Laying off due to redundancy is expensive

In reality, dismissal of employees due to staff reduction is not only a time-consuming, but also not a very cheap procedure. The boss needs to pay people not only wages and compensation for vacation that was not used, but also severance pay for two months. In addition, if a citizen, after being laid off, is not employed no later than ten days from the date of his dismissal, then in this case he will receive a cash benefit from the previous manager for the third month. That is why many employers try to make their subordinates subject to dismissal due to at will. Then you won’t have to pay them so much money.

If there is a layoff at work, but the boss still forced the unwanted employee to leave of his own free will, such dismissal can be appealed in court. Only for this you will need witness testimony and documentary evidence this fact. Otherwise, it will be simply impossible for a subordinate to be reinstated at work and receive all the money due.

Notification

The manager warns the employee about the upcoming layoff 2 months in advance. The notice is drawn up in writing and handed to the person against signature. Otherwise, the employee will not be considered aware of the upcoming dismissal, which may subsequently cause his boss big troubles, even leading to litigation.

In a situation where there is a layoff at work, the employee’s rights should not be infringed by his boss. The latter is obliged to offer the former all available vacancies, which may be specified in the notification itself.

The redundancy notice looks like this:

00.00.00 _______________

Dear __________________ (employee’s full name)!

We notify you that due to staff reductions, the position you hold _____________ is subject to reduction __________ (the number taking into account two months from the specified date of notification).

We offer you a choice of available vacancies ______________ (name of vacancies). If you agree to work in a different position, please inform the HR department of the organization (name) to the HR specialist in writing before the expiration of a two-month period from the date of receipt of the notification.

Sincerely, Director of LLC ________________ (signature transcript).

From the moment the subordinate was notified of the upcoming reduction, a two-month period begins to expire, after which he is subject to dismissal with all payments due to him, unless, of course, he agrees to another proposed vacancy.

Payments

When dismissing a person on the basis of clause 2 of part 1 of Article 81 of the Labor Code of the Russian Federation, the manager must pay him in full and pay:

Salary for the entire period of work.

Compensation for vacation if it was not used. If the employee has already been on vacation, but the period has not been fully worked out, then in the event of a reduction, deductions from his salary are not made for this.

In the amount of two months' earnings. If, after dismissal, an employee applied to the employment authorities, but was not employed, he retains this earnings for the 3rd month. In this case you need to provide former management his work book or a certificate from the employment center that he is registered with them.

Full payment to the employee must be made on the last day of his work, otherwise this will be a violation of Article 140 of the Labor Code.

Right to keep your job

If there is a layoff at work, then only those persons with the highest labor productivity and qualifications have a priority right to retain their jobs.

In the case where all workers have the same productivity and highly qualified, preference should be given to an employee who:

Has two or more dependents to support, for whom the salary this person is the main source of existence;

Is the sole breadwinner of the family if none of its members has a job or other income;

Received an illness while working or another serious injury in this organization;

Is disabled Great Patriotic War or a disabled person who was injured during the defense of the Fatherland;

Increases his level of education in the direction of management without interruption from work.

Paperwork

After all the measures taken related to dismissal due to staff reduction, the moment comes when the employee must be given the work book and all the payments due. After this, he must sign the order confirming this fact.

When preparing an order, the organization’s personnel specialist must indicate in it the exact wording of the grounds for dismissal, indicating the paragraph, part and article of the Labor Code. After this, fill out the work book, put your signature on it and certify all this with the seal of the organization. The entry in the employment record should be as follows: “Dismissed due to staff reduction on the basis of paragraph 2 of part 1. Other wording is not used, because the citizen is dismissed from work due to reduction, and not due to other circumstances.

All documents related to the person’s performance of his labor activity, as well as all documents required for him cash, must be issued to the employee on the day of dismissal.

Inadmissible moments

At a time when there is a layoff at work, it is unacceptable to accept new people into existing vacant positions. This would be a serious violation on the part of the manager, since he should offer these vacant positions only to persons who are at risk of dismissal on this basis. Level of education of workers values ​​in in this case does not have.

It is unacceptable, in the final financial calculation, to deduct from an employee’s salary for annual leave that has already been granted, if 12 months have not been fully worked out.

In a situation where there is a layoff at work, the employee’s rights cannot in any way be infringed upon by management. This primarily applies to timely payments, otherwise the dismissed person may seek protection from the judicial authorities.

Contacting employment authorities

After the employment contract with an employee has ended on the basis of dismissal due to staff reduction, the citizen has every right and is even obliged to contact the employment authorities within 10 days from the date of his payment. In this case, he will retain his average earnings for the third month.

The employment service, in turn, should help the unemployed find a vacancy that interests him. As a rule, for those who want to work, a good and suitable job. Reduction of staff as a basis for dismissal does not in any way affect subsequent work activity, but at the same time it gives the opportunity to a person registered with the employment authorities to receive maximum size unemployment benefits.

Job search

But sometimes the employment service does not provide attractive vacancies, so you have to go looking for them yourself. At the same time, you need to spend a lot of effort to find a truly interesting and paid position.

Finding a suitable vacancy is always morally difficult. This is especially difficult if the fired person has been laid off. Finding a job in this situation is further complicated by the fact that a place with a decent salary is difficult to find. That is why many citizens who are subject to layoffs try to remain in their previous place, even in a different position and with a lower salary. This is better than being unemployed later and receiving a small benefit from the employment center.

A good job after a layoff will most likely go to someone who has extensive experience in their profession and is actively looking for a new vacant position.

Illegal reduction

In practice, there are cases when employers try to get rid of annoying subordinates by any means. In this case, methods such as illegal or “imaginary” reduction are also used. In this case, no measures indicating preparation for dismissal are carried out by the manager. The employee is simply verbally warned that his position will be reduced, and is given a period of two months to look for another job.

In the event of an illegal layoff, no payments other than wages are made to the citizen, although they are written down on paper. At the same time, few people turn to the courts to protect their rights, although such cases occur quite often.

Arbitrage practice

Court hearings between a subordinate and his employer are not uncommon in modern justice. Moreover, the law almost always stands on the side of the employee, and not his boss.

Let's give an example from judicial practice, illustrating the situation.

The citizen worked as a foreman at a factory. After the manager changed, he started having problems at work. The new boss wanted to place another person in this position, but he could not fire the employee, there was no reason. Then the HR specialist advised the management to carry out an “imaginary” reduction procedure, about which the foreman should be notified 2 months in advance. However, no other vacant positions were offered to the latter, and he was fired. And another person was quickly hired to take this place. Having learned about this, the former subordinate filed a lawsuit against his boss.

It follows from the court decision that if there is a reduction in staff at work, the citizen subject to it must be offered another available position. In this case this was not done. In addition, there was no staffing table indicating a reduction in this profession. In this regard, the judicial authority satisfied the latter’s claim and reinstated him at work, in addition, recovered a sum of money from the employer to compensate for moral damage.

In case of violation of labor legislation, an illegally dismissed person has the right to reinstatement at work. The reduction and subsequent termination of the employment relationship in this case can always be appealed through the courts.