Reducing the number or staff of employees: step-by-step instructions. Actions of an employee upon layoff

What compensation is provided for dismissal due to staff reduction? What is the procedure for laying off employees? Is it possible to lay off pregnant women and pensioners? We will answer these and many other questions in this article.

In order to survive during the financial crisis, or to get out of the difficult financial situation of the company with minimal losses, the management of the organization may decide to reduce staff - abolishing staff positions or reducing the number of employees. It is very important for the employer to know all the intricacies of this difficult procedure, because the slightest violation in its implementation can lead to litigation with laid-off employees, and most importantly, to the loss of the company’s positive reputation. Cases of dismissal due to reduction are among the most difficult among all judicial labor disputes, due to the massive scale of such dismissals.

This article will help workers avoid the “tricks” of unscrupulous bosses, learn about their legal rights and due payments when laying off, and also decide under which article it is more convenient and profitable to resign.

Provisions of the Labor Code of the Russian Federation on dismissal due to reduction

All issues of staff reduction are regulated by the Labor Code of the Russian Federation. It states that legal redundancies must be carried out taking into account the following requirements:

1) The fact of dismissal due to reduction must have documentary evidence in the form of staffing, salary sheets, payroll, etc. It is not allowed to replace the position of a laid-off employee with an alternative one: with a similar nature and scope of duties performed.

2) Before laying off an employee, he must be offered other available vacancies, taking into account the employee’s qualifications and health status.

3) The employer must take into account the list of persons whose dismissal is unacceptable, and also comply with the provisions of the Law on the preferential right to remain at work (Article 179 of the Labor Code of the Russian Federation).

4) Each employee must be notified individually about the planned reduction and dismissal, no later than 2 months before the date of reduction, as well as the elected trade union organization.

5) On the last working day, a final settlement is made with the laid-off employee and a work book is issued.

7) According to Art. 178 of the Labor Code of the Russian Federation, the employee is issued severance pay and other payments are made, which you will learn about below.

Step-by-step instructions for redundancy dismissal

Compensation, payments, benefits: what is an employee entitled to when staffing is reduced?

In addition to the “standard” payments (payment of wages and compensation for unused vacations), a laid-off employee is entitled to additional payments:

  • Payments of average earnings during the search new job, not exceeding 2 months from the date of dismissal (and at the discretion of the employment service - up to 3 months).
  • Severance pay in the amount of average earnings (Article 178 of the Labor Code of the Russian Federation), with a reduction in the number of seasonal workers - 2 weeks of average earnings (Article 296 of the Labor Code of the Russian Federation). The employment contract may provide for a larger benefit.
  • Additional compensation in the amount of 2 average salaries.

At the same time, it is not allowed to withhold funds for unworked vacation days “taken in advance.”

So, the total amount of redundancy payments is quite significant. Therefore, some employers, in order to save money, “persuad” or “force” an employee to resign on their own initiative or by agreement of the parties.

(Indeed, notifying an employee of a layoff does not preclude his dismissal for other reasons).

How can an employee act competently in a situation of “pressure” in order, on the one hand, to avoid an open conflict with the employer, and on the other hand, not to end up “losing”? And what are the fundamental differences in the consequences of each of the three types of dismissal?

Dismissal by agreement of the parties or by layoff, which is better?

An employee should know: by writing such a statement, he signs a “verdict” for himself and deprives himself of all payments due in the event of a reduction in staff.

But there is one important nuance: It all depends on the wording of the statement. If an employee draws up a statement as follows: “I ask you to dismiss me due to the reduction of my position before the expiration of the notice period for dismissal,” then the dismissal will take place under Art. 81 of the Labor Code of the Russian Federation, with a guarantee of all payments. However, such dismissal is permissible only with the approval of the employer.

Who cannot be fired due to staff reduction?

The employer does not have the right to dismiss due to staff reduction:

  • temporarily disabled;
  • employees on leave (including student leave and without pay);
  • women with children under 3 years of age; single parents with a child under 14 years of age or a disabled child under 18 years of age;
  • members of trade unions, etc.

Can a pregnant woman be fired due to staff reduction? Pregnant women and women on maternity leave cannot be fired on this basis.

If an employee belonging to one of the “untouchable” categories has been laid off, his reinstatement through the courts occurs “automatically”.

Priorities of employees during layoffs

During the downsizing process, not all employees are on equal footing with regard to the risk of being fired. Employees with higher labor productivity and qualifications are given preferential right to remain at work. All other things being equal, the following employees have priority:

  • persons who are the only “breadwinners” in the family;
  • employees who were injured in this organization or professional disease;
  • employees who improve their qualifications in the direction of the employer;
  • family persons - if there are 2 or more dependents.

In addition to the categories specified in the Labor Code, benefits for remaining at work upon dismissal due to staff reduction are determined by federal laws for other employees:

  • military spouses;
  • authors of inventions;
  • discharged from military service;
  • disabled people of WWII and combat;
  • victims of radiation, etc.

Internal collective agreements may also provide for categories of workers with the advantage of remaining at work.

Compliance with the rights of these categories of employees must be documented: by drawing up a summary Comparison Table or other document.

Dismissal due to staff reduction of pensioners: payments and features

Reaching retirement age is not only not a reason for priority reduction, but according to the provisions of Art. 179 of the Labor Code of the Russian Federation, may be an advantage due to the high productivity and qualifications of the employee.

When staffing is reduced, the dismissal of pensioners is ensured by all the guarantees and payments provided for in Art. 178 Labor Code of the Russian Federation. Other interpretations legislative norms contradicts the requirement of equal rights for workers (Part 1, Article 2 of the Labor Code of the Russian Federation) and the prohibition of discrimination in the sphere of labor (Article 3 of the Labor Code of the Russian Federation).

The material was prepared by order of the law firm "Dominium"

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During reorganization production process there is a need to introduce amendments to the organization of work. In the current situation, there is a high probability of carrying out a staffing reduction procedure, which entails the dismissal of a certain number of employees.

How are they enshrined in law?

Intra-organizational changes have a dual nature; on the one hand, the costs associated with maintaining work force On the other hand, worker productivity increases.

Reorganization measures may lead to an increase in prices for goods or services, a decline in demand for them due to increased prices.

The dismissal of employees due to staff reduction is regulated by the Labor Code. In accordance with her instructions, the dismissal of an employee is carried out on the basis of an order.

It indicates the basis and date of dismissal. The employer compiles lists of positions subject to exclusion from the staffing table.

He issues an order to carry out the procedure for reducing and amending the staffing table on the basis of the specified list in accordance with the Labor Code of the Russian Federation.

At the employer when carrying out a reduction in accordance with the requirements labor law certain responsibilities arise to the employee.

He must:

  • in accordance with the provisions of the Labor Code, offer the employee another vacant position corresponding to the employee’s specialty and his state of health;
  • notify the employee of the reduction in staff in accordance with the requirements of Article 180 of the Labor Code in advance, namely two months. Moreover, familiarization must be carried out against signature, for which he draws up a special document - a notification, which is presented to the employee for review;
  • coordinate with the trade union committee your actions regarding the procedure for reducing staffing, submit for consideration a list of employees subject to dismissal;
  • Notifying the employment center about organizational measures being taken at the enterprise, as a result of which a certain number of workers are subject to dismissal. The message must be sent two months before the start of the redundancy procedure. It indicates the personal data of dismissed employees, their profession, specialty, qualifications, position held, and remuneration system.

These mainly include workers who:

  • have higher qualifications, whose labor productivity is equal production conditions higher compared to the rest of the workers;
  • have two or more disabled persons dependent on them;
  • are the only breadwinners in the family;
  • received any type of occupational disease, injury or injury while performing labor responsibilities at this enterprise;
  • improve their skills in the area of ​​the enterprise.

If an employee cannot find a job within two months, the employer pays him benefits. But the employee must register with the employment center within one month following the dismissal.

At the request of the center, he may be paid an allowance for the third month of his stay without work. The employee must present to the employer work book, which confirms the lack of employment.

In addition to this, he submits a certificate stating that he is temporarily unemployed, obtained from the employment center.

What guarantees are required when making redundancies?

Issues of making payments due to an employee dismissed due to staff reduction, their amount are regulated by Chapter 27 of the Labor Code. It provides explanations on the guarantees and types of compensation that employees are entitled to.

The employer makes payments on the last working day. Along with them, the employee is given a work book, prepared accordingly.

The employer must, if the dismissal is carried out on the basis of staff reduction:

  • pay the employee severance pay in accordance with the requirements of Article 81 in the amount of average monthly earnings;
  • maintain the employee's average monthly salary during the period of his employment in accordance with the provisions of Article 178. As a rule, the employer makes payments for the two months following dismissal.

The employer, by paying severance pay, compensates the employee for the early termination of the employment contract concluded with him. It must stipulate the conditions for making severance pay payments and its amount.

If the employment contract does not contain the specified clauses, then payment is made according to general rules provided for in such situations by labor law.

When an employee is dismissed due to staff reduction, in accordance with labor law standards, the employee is paid:

  • wages for hours worked;
  • compensation for unused vacation;
  • severance pay in the amount of average monthly wages. If the employee was engaged in seasonal work, then he is paid a benefit in the amount of two weeks of work.

Average monthly earnings are calculated taking into account accrued wages, including the length of time worked. In addition, the employer pays a living allowance for two months.

Who can't be laid off?

Any employee must have information about his rights so that if the employer’s actions are unlawful, he can defend his point of view.

In addition to employees who have a preferential right, certain rights are vested in labor law standards for employees who:

  • are undergoing treatment due to temporary disability;
  • are in labor leave provided by the enterprise every year;
  • have not reached adulthood. To dismiss them, the employer must obtain the consent of the state labor inspectorate.

The employer is deprived of the opportunity to dismiss female employees in accordance with the Labor Code. These include women who:

  • are pregnant;
  • are on maternity leave to care for a minor child;
  • have children under three years of age;
  • recognized as a single mother raising children under 14 years of age and a disabled minor child.

Article 261 of the Labor Code provides for certain cases that deprive an employer of the opportunity to dismiss persons from work.

These include workers who raise orphans if they have not reached the full age of 14 and persons supporting a disabled minor child if he has lost his parents or one of them.

What to do if you were laid off illegally

Labor regulations ensure reliable protection employee rights, regardless of the legal form of the employer.

As a rule, the employer bears administrative responsibility for offenses committed against employees. Usually it consists of imposing a fine, the amount of which depends on the degree of guilt of the employer.

If the dismissal procedure due to staff reduction is violated, the employee can file a complaint with the state labor inspectorate. She is obliged to understand the current situation, which is associated with the dismissal of an employee.

He can also appeal the employer's decision to dismiss him from work in court. The employee must file a claim within one month after he was laid off.

In most cases, if the employer acts unlawfully, the judicial authority supports the employee by deciding to reinstate him at work.

In addition, he may oblige the employer to pay compensation to the employee for moral damages. The employer makes payment for the employee’s forced days of absence if he was dismissed from work under duress.

And in conclusion, it should be noted that in the labor market and labor recruitment there is an intensive increase in unemployment associated with a reduction in the workforce at domestic enterprises. These phenomena are directly related to the devaluation of the national currency due to the economic crisis.

Dismissal due to staff reduction is one of the reasons for the dismissal of an employee and termination of his employment contract. Reducing staff and number of employees is necessary to optimize the work process. Dismissal on this basis is the most common, but also the most problematic.

The dismissal procedure due to staff reduction includes several stages:

  • issuance of a reduction order (not to be confused with a dismissal order due to staff reduction). This order gives a “signal” to begin measures to reduce staff or the number of employees. Without signing such an order, the employer does not have the right to fire anyone;
  • notification of employees who are being laid off. Notification must be given at least 2 months before the expected date of dismissal. The notification must be made in in writing and handed to each employee who is fired. This document must indicate the date of dismissal and the grounds. The employee must sign the notice. This means that the employee has become familiar with the upcoming staff reduction;
  • offering laid-off employees another job. The employer is obliged to offer all employees who have been laid off other vacancies that correspond to their qualifications and work experience. A list of vacancies is usually specified in the notice of dismissal. If the employee agrees to one of the proposed vacancies, he writes “agree” on the notification itself. If he does not agree, then this must be indicated. The employer must offer the employee available vacancies until the day of dismissal. There is no deadline set by law. When an employee must accept the proposed vacancy. If the employee agrees, then a transfer to another position will follow; if not, then dismissal.
  • if there is a trade union at the enterprise, then it is necessary to notify it of the upcoming layoff. This must be done no later than 2 months before the expected date of layoffs. If there is a massive reduction, then within 3 months. You also need to notify the employment center 2 months in advance.
  • dismissal of workers. An order for the dismissal of employees (full names of all laid-off employees) due to staff reduction is issued.

The employer is obliged to pay all dismissed employees severance pay in the amount of the average monthly earnings of a particular employee. Plus, for the duration of the proposed employment, the employer must pay the employee 2 months of average monthly earnings. If within 2 weeks after dismissal an employee registered with the employment center at his place of residence and was unable to find a job, then the employer is obliged to pay for the 3rd month.

Sometimes employees do not wait until two months have passed from the date of notice and look for a new job. If an employee resigns before the expiration of the 2-month period at will, then the employer is also obliged to pay him an allowance in proportion to the remaining time.

In addition to these payments, the employee must also receive:

  • wages for actual time worked;
  • compensation for unused vacation;
  • other payments that may be provided for in an employment or collective agreement as additional compensation in case of staff reduction.

Dismissal of an employee due to staff reduction is the longest and most problematic procedure. HR officers often make mistakes when filling out paperwork and incorrectly notify employees, which gives the latter the right to go to court with statement of claim about wrongful dismissal, be reinstated and receive compensation from the employer for moral and material damage caused.

Not all employees can be laid off. It is prohibited by law to reduce:

  • pregnant women;
  • women with children under three years of age.

Also, do not forget that some employees have a preferential right to remain at work. Worker with more high level qualifications and labor productivity has the right of priority to remain in the workplace over an employee of a similar profession, but with lower performance.

Who cannot be laid off by law

In Art. 261 of the Labor Code of the Russian Federation provides a detailed list of workers and employees who are immune to staff reduction. That is, they cannot be fired on this basis. These include:

  • pregnant employees. It should be understood that the presence of a “belly” is not proof of the fact that a woman is pregnant, so it cannot be reduced. Proof can only be a corresponding certificate from the medical institution where this woman is registered for pregnancy. The certificate is issued on a special form, certified by the signature of the attending physician, the head of the antenatal clinic, the chief physician, as well as the seal of the medical institution;
  • women who are raising a child or children until they reach the age of three. Proof of this fact is a copy of the birth certificate of the child (children);
  • single mothers who raise children under 14 years of age, or children with disabilities until they reach adulthood. This fact is confirmed by the corresponding certificate, which is issued by the department social protection. The child’s age is confirmed by a copy of the birth certificate, and the fact of disability is confirmed by relevant medical documents.

The last 2 points apply not only to mothers. If instead of the mother, the father is involved in raising, provided that the child’s mother has died or is deprived parental rights in relation to him, or another relative, then the rule of non-reduction applies to him.
That is, the Labor Code provides guarantees to those citizens who have minor children as their dependents. But any benefit must be documented. Therefore, the employee who is raising a child on his own must submit documents about this to the HR department, as well as confirm his relationship with the child.

The procedure for dismissing employees during staff reductions

To avoid problems later in the form of court hearings regarding an incorrectly carried out dismissal procedure, it is necessary to observe all the details of dismissing employees due to staff reduction.

First, the employer must issue an order to the enterprise regarding the upcoming layoff. This must be done 2 months before the start of the procedure. In addition, each employee must familiarize himself with the order and put his signature on the document.

This order must contain a list of those persons who are not subject to reduction by law. Each employee who is on this list must also be familiarized with this list against signature. Then you need to notify each employee of the upcoming dismissal due to staff reduction. The notice must be in writing and each employee facing layoff must sign. This does not mean that he agrees with the dismissal! This indicates that he was informed of the upcoming event. If an employee refuses to sign, it is necessary to draw up a statement of refusal.

If an employee wishes to resign earlier than the date specified in the notice, then there should be no problems with this on the part of the employer. However, the employer must pay such employee additional compensation.

All employees who will be laid off due to staff reduction must be offered vacant positions that correspond to their skill level and work experience. The proposal must be in writing. If the employee agrees to this vacancy, then he writes “agree” and puts his signature. If he refuses, then “disagree” and sign accordingly.
Job offers must be made before the notice period expires. If there are no vacant positions, then it is necessary to draw up a document about this, which will be signed by the head of the enterprise. If the enterprise has minor workers who are being laid off, then it is necessary to obtain the consent of the State Labor Inspectorate and the Commission for the Affairs of Minors and the Protection of Their Rights to dismiss minor employees. This is stated in Art. 269 ​​Labor Code of the Russian Federation.

If there are employees who agree to take other positions, then it is necessary to properly formalize their transfer. Those employees who do not accept the proposed vacancies are subject to dismissal. They need to be paid compensation for the loss of their jobs, as well as vacation pay and wages. If all the nuances are not followed, dismissed employees may sue the employer. The subject of the claim will be illegal dismissal. If the court recognizes this fact, then all laid-off workers will be reinstated in their jobs, and the employer will have to pay a fine.

How is severance pay calculated?

The employer is obliged to pay severance pay to all employees who are dismissed due to staff reduction. This is a kind of compensation on his part for depriving these people of the right to work.

In Art. 178 of the Labor Code of the Russian Federation states what payments the employer must make. He must pay:

  • wages for the time actually worked by the employee;
  • compensation for vacation days that he did not have time to take off;
  • severance pay.

Severance pay is paid for the next 2 months after dismissal. If the employee does not find a job within this period, but registers with the employment center at his place of residence (this must be done within two weeks after dismissal), then the employer must also pay him benefits for the 3rd month.
The fact that the former employee is still not employed must be confirmed to the employer. The employee must do this himself. Only after this can he count on receiving benefits for the 3rd month.

Severance pay is calculated based on the employee's average monthly earnings over the last year. The accounting department handles the calculations. The employer is obliged to pay benefits for 2 months. But if the employee is hired within the second month after dismissal, severance pay is paid only for those days when the employee did not work. This fact confirmed by an entry in the work book. But as practice shows, the employer pays benefits immediately for 2 months. In addition, if an employee agrees to dismissal before the expiration of 2 months before the proposed reduction, the employer must pay him severance pay for another 1 month.

To pay severance pay, you need to calculate average earnings specific employee for Last year. For example, an employee quits in March 2018. Then the billing period will be from 03/01/2017 to 02/28/2018. If he has not worked for even a year, then the actual time worked is taken for calculation.

For the calculation you need to take into account:

  • the employee's salary;
  • various incentives and compensation payments.

No need to consider:

  • vacation pay;
  • sick leave payments;
  • compensation for unused vacation or other payments that are in no way related to work.

It is also worth taking into account the number of days actually worked by this employee during the accounting year.

Compensation for dismissal due to staff reduction

Without paying compensation, an employer cannot lay off its employees. This is a violation of the rules labor legislation. Compensation must be paid on the last working day along with wages and compensation for vacation.

A resigning employee can enter into an agreement with the employer and resign by agreement of the parties. In this agreement, the employee can indicate the desired amount of severance pay, which will not depend in any way on his average earnings. As a rule, employers agree to such dismissals, since this frees them from complying with the personnel reduction procedure and “paper” work.

ADJUSTMENT OF STAFF SCHEDULE

First of all, you need to develop a reduction plan and prepare an order to make changes to the staffing table construction company.

GUARANTEES OF LEGISLATION

When preparing the relevant documents, it is necessary to remember that some categories of employees, when staffing is reduced, have a priority right to be retained at work, and some cannot be laid off in principle.

Preferential rights are given to employees with higher labor productivity and qualifications. This is defined in Article 179 of the Labor Code of the Russian Federation.
With equal labor productivity and qualifications, preference is given to:
- family - if there are two or more dependents;
- persons in whose family there are no other workers with independent income;
- employees who received a work injury or occupational disease while working in this company;
- disabled people of the Great Patriotic War and disabled combat veterans;
- employees who improve their qualifications in the direction of the employer without interruption from work;
- other categories of employees whose preferential rights are determined in the collective agreement.

Who can't be laid off? Termination of a contract at the initiative of the employer due to a reduction in the number or staff of the following employees is not allowed (Article 261 of the Labor Code of the Russian Federation):
- pregnant women (dismissal of a pregnant employee is permitted if she was hired for the duration of the duties of an absent employee and there is no possibility of transferring her to a vacant position);
- women with children under three years of age;
- single mothers raising a child under the age of fourteen (a disabled child - up to eighteen years);
- other employees raising these children without a mother.
It is also impossible to lay off workers during illness and while on vacation (Article 81 of the Labor Code of the Russian Federation).
In practice, the question often arises: is it possible to lay off a person who is on probationary period? Yes, you can. After all, such workers are subject to all labor law norms that apply to ordinary full-time employees.

NOTICE OF UPCOMING REDUCTION

The company is obliged to notify not only employees, but also the employment service of the upcoming layoff.
Employees must be notified of the upcoming dismissal personally and against receipt at least two months before the expected date of dismissal (Article 180 of the Labor Code of the Russian Federation). The form for such a notification has not been officially approved, so it can be compiled in any form.
In this case, the company, with the written consent of the employee, has the right to terminate the contract with him. employment contract and earlier - before the expiration of the two-month period. However, in this case, the employee will have to pay additional compensation in the amount of average earnings, calculated in proportion to the time remaining until the end of the term.
Please note: notice periods may vary.
Thus, employees who have entered into fixed-term employment contracts for a period of up to two months must be notified of layoffs at least three calendar days in advance, and employees employed for seasonal work, - for seven calendar days(Articles 292, 296 of the Labor Code of the Russian Federation).
The company must also notify the employment service of the upcoming dismissal no later than two months in advance. And if we are talking about mass layoffs - three months in advance. This procedure is provided for in paragraph 2 of Article 25 of the Law of April 19, 1991.
No. 1032-1 “On employment in Russian Federation"and Article 82 of the Labor Code of the Russian Federation.
In this case you need to fill in:
- “Information about the mass release of workers”;
- “Information about laid-off employees.”
The forms of the forms are given in Appendices No. 1 and No. 2 to the Regulations on the organization of work to promote employment in conditions of mass unemployment, approved by Resolution of the Council of Ministers - Government of the Russian Federation of February 5, 1993 No. 99.

OFFER OF AVAILABLE VACANCIES

It is important to remember that dismissal due to staff reduction is considered legal only if the company does not have the opportunity to provide people with other work available in the organization. Moreover, vacancies that correspond to the qualifications of the employee being laid off, as well as lower-ranking (or lower-paid) vacancies are taken into account. The main thing is that the employee gives his written consent to the transfer (if he can perform other work taking into account his state of health).
At the same time, the employer is obliged to offer the dismissed all vacancies available in the given area that meet the relevant requirements. Offering work in other areas should only be done in cases where such an opportunity is provided for by a collective or labor agreement (Article 81 of the Labor Code of the Russian Federation).
The offer form for available vacancies is also not officially approved, so it can be compiled in any form.

CRITERIA FOR MASS TERMINATION

They are defined in sectoral or territorial agreements. There is no such document for construction. Therefore, one should be guided by the general standards established in paragraphs 1, 2 of the Regulations approved by Resolution No. 99. The main criteria for mass layoffs are the indicators of the number of dismissed workers in connection with the liquidation of organizations or a reduction in the number or staff of employees for a certain calendar period. These include:
a) liquidation of an organization of any legal form with 15 or more employees;
b) reduction in the number or staff of the organization’s employees in the amount of:
- 50 or more people within 30 calendar days;
- 200 or more people within 60 calendar days;
- 500 or more people within 90 calendar days;
c) dismissal of employees in the amount
1 percent of total number working in connection with the liquidation of an organization or reduction in headcount or staff within 30 calendar days in regions with total number employing less than 5,000 people.
Depending on the territorial and sectoral characteristics of economic development and the level of unemployment in the region, other criteria for assessing mass layoffs, determined by the authorities, may be established to enhance the social protection of employees of organizations state power republics within the Russian Federation, territories, regions, autonomous entities, cities and districts.
COORDINATION WITH THE TRADE UNION

The employer, according to part one of Article 82 of the Labor Code of the Russian Federation, when making the appropriate decision, is obliged
inform the elected body of the primary trade union organization about this in writing no later than two (three - in case of mass layoffs) months before the termination of employment contracts with employees.
In this case, one should take into account the position of the Constitutional Court of the Russian Federation, which is expressed in the ruling of January 15, 2008.
No. 201-O-P. The court emphasized that the purpose of this norm is to provide the trade union organization with the time necessary to implement its existing opportunities to protect the social and labor rights and interests of workers upon termination of employment contracts with them, but in no way restricts the employer’s powers to independently make the necessary personnel decisions in order to implementation of effective economic activity. This conclusion is based on constitutional requirements for fair coordination of the rights and interests of employees with the rights and interests of employers as parties to an employment contract and as participants in a social partnership.
In other words, the consent of the elected body for reduction is not required; it is enough to notify it in writing.
When laying off employees who are members of a trade union, the reasoned opinion of the elected body of the primary trade union organization must be taken into account in accordance with Article 373 of the Labor Code of the Russian Federation.

TERMINATION

After two months after delivery of the notice of layoff, the employer has the right to issue an order to dismiss the employee. After the employee has read the order (against signature), a dismissal entry is made in his work book.
The order is issued in form No. T-8, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1.
How to draw up a work book in the event of a layoff is explained in Section 5 of the Instructions approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69. Thus, when terminating an employment contract at the initiative of the employer, including in the event of a reduction in staff, an entry is made in the work book about dismissal (termination of an employment contract) with reference to the corresponding paragraph of Article 81 of the Labor Code of the Russian Federation. For example: “Dismissed due to a reduction in the organization’s workforce, paragraph 2 of Article 81 of the Labor Code of the Russian Federation.”
The wording of the entry in the book must correspond to the wording of the paragraph (article) of the Labor Code of the Russian Federation indicated as the basis for the entry. Abbreviations are not allowed either in the text or in references: you cannot write “trans.” instead of “translated”, “p.” instead of “clause”, “Labor Code of the Russian Federation” instead of “Labor Code of the Russian Federation”, “pr.” instead of “order”, etc. (clause 1.1 of the Instructions). This is required to eliminate possible discrepancies.

Payments upon layoff

Dismissed employees must be paid on their last day of work. If a person did not work on the day of dismissal, then the money is paid to him the next day after he applied for it.
This procedure is established in Article 140 of the Labor Code of the Russian Federation.

WHAT PAYMENTS ARE ALLOWED TO AN EMPLOYEE

Upon dismissal due to a reduction in headcount or staffing, the employee is entitled to pay:
- severance pay in the amount of average monthly earnings;
- average earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).
This is stated in Article 178 of the Labor Code of the Russian Federation.
In exceptional cases, the average monthly salary is retained by the laid-off employee for the third month from the date of dismissal.
But this requires a decision from the employment service (it can be issued if a person applied within two weeks after dismissal and was not employed).
For builders working in organizations located in the Far North and equivalent areas, Article 318 of the Labor Code of the Russian Federation provides additional benefits.
Thus, the maximum period for maintaining average monthly earnings for the period of employment is three months from the date of dismissal.
And in exceptional cases, by decision of the employment service authority, the average monthly salary can be maintained during the fourth, fifth and sixth months (if the person applied within a month and was not employed).
In addition, as noted above, if the employment contract is terminated early (before the expiration of two months from the date of notification, written consent employee), additional compensation is due. The amount of compensation is equal to average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal (Article 180 of the Labor Code of the Russian Federation).
And of course, the dismissed employee must be paid compensation for unused vacation (including additional).
Please note: when foreign construction workers are dismissed upon expiration of quotas (based on clause 12 of Article 83 of the Labor Code of the Russian Federation), severance pay is not paid. Article 178 of the Labor Code of the Russian Federation does not provide for its payment in this case. But such a dismissal is not considered a reduction.

Many workers are faced with a situation in which you could be laid off, especially now when the economic situation in the country is somewhat unstable. From the moment an employee is informed that he will be laid off, he has a lot of questions in addition to where to look for a new job: are there any payments due? If yes, in what size? What if I am a pensioner or a pregnant woman? How should the dismissal procedure proceed?

Staff size optimization

First, you need to understand the basic theoretical issues that the reduction procedure raises.

It is necessary to clearly understand the difference between downsizing and downsizing. Thus, the number of employees is the entire payroll of employees specific enterprise. If we are talking about downsizing, then the number of employees in a certain position is reduced. For example, it is necessary that there are two engineers at the enterprise instead of the currently available ten.

The staff usually includes all management and administrative employees at a particular enterprise. When reducing staff, identical positions or employees of the entire unit being reduced must be excluded from the staffing table. When it comes to reducing a certain staff unit, it is not just one employee who quits, but everyone who staffing table perform work in a specific position.

Legislative grounds

If the enterprise has a question about the need to reduce the number or staff of employees, then on the basis of paragraph 2 of paragraph 1 of part 81 of Article 81 of the Labor Code of the Russian Federation, this is the determining factor for early termination employment contract with specific employees.

To begin the dismissal procedure on this basis, you must make sure that all actions are carried out within the framework of the law, i.e. the employer is obliged to refer to the fact that the company really needs to make reductions.

In addition, in accordance with Article 179 of the Labor Code of the Russian Federation, it is necessary to respect the right of some employees (for example, a pregnant woman and those who have higher qualifications) and the order of reduction. It is imperative that an employee who is notified of an upcoming layoff must be provided with alternative vacancies (if any at the enterprise) taking into account his abilities, qualifications and health status.

In accordance with By the decision of the Constitutional Court of the Russian Federation, dated December 18, 2007, serial number 867, no employer is obliged to in any way justify his decision that he needs to make a reduction. He independently makes decisions that he considers economically beneficial for his enterprise. Third-party organizations, primarily the court when making a decision on the complaint of a dismissed employee, cannot decide whether it was necessary to reduce personnel. For example, the court is only authorized to resolve the situation regarding the legality of the dismissal procedure. In practice, there are often cases when in court the employer still has to justify his decision and refer to certain documentation of the organization.

Payments upon dismissal of an employee

In accordance with current labor legislation, an employee must be notified of an upcoming layoff at least two months before the day on which his actual dismissal occurs. A special order is issued about this, which is read to the employee against signature, indicating the date of familiarization.

In the case where the employee to be laid off has read the document, but categorically refuses to sign it, a special document must be drawn up that reflects this fact.

During the period from introduction to dismissal, the employee must be offered other available positions in accordance with his skills and abilities. If he refuses the proposed options, then after two months the employment contract is terminated. The next step After termination, final settlement with the employee occurs.

Severance pay

Severance pay, as well as other payments, must be transferred to the employee on his last working day. The same time is set for the transfer of the work book.

What is severance pay upon dismissal? This is the payment of a certain amount of money to a dismissed employee from an enterprise that optimizes the number of employees through a reduction procedure.

Severance pay includes the amount of average monthly earnings, taking into account additional deductions.

The employee is also entitled to similar amounts for the next two months after dismissal until employment (calculation is made taking into account the amount of severance pay). In exceptional cases, the employee will be paid for the next three months after dismissal (within 2 weeks from the date of official dismissal, the employee registered with the labor exchange).

Amounts due to an employee as severance pay, based on paragraph 3 of Article 217 of the Labor Code of the Russian Federation, are not subject to taxes, except for the case when the amount of payments exceeds 3-month average earnings.

The calculation of average earnings due for payments is made on the basis of Article 139 of the Labor Code of the Russian Federation, as well as the Decree of the Government of the Russian Federation, dated December 24, 2007, serial number 922. The calculation period is taken to be 12 calendar months preceding the day of dismissal. When the average is calculated, a person's entire earnings are taken into account based on how much they were actually paid.

The amount of average earnings must take into account:

  1. Premiums and bonus payments, rewards. No more than one type of additional remuneration per month during the calculated period is taken into account. If there are more bonus amounts, then you can take them into account in the month where there were none;
  2. Remunerations based on the results of the year, in connection with length of service, length of service, etc.;
  3. Other payments included in the monthly salary.

The main rule for calculating the amount of average earnings: it should not be below the threshold living wage established in the country on the day of dismissal.

If the employee subject to redundancy has not worked for 12 months at this enterprise, then the entire period of service must be taken into account when calculating the amount. If the work time was not even one month, then for the calculation it is necessary to take the amount of his tariff rate or official salary.

The following periods are not taken into account when calculating average monthly earnings:

  1. when the employee did not receive the entire amount worked, but only the average payment for his work (such periods cannot include the time when a woman, in accordance with the Labor Code of the Russian Federation, can leave workplace for feeding a child);
  2. sick leave time, as well as social leave provided in connection with pregnancy and childbirth;
  3. when the employee was not at the workplace due to circumstances beyond his control;
  4. when there was a strike (the employee did not participate, but could not work);
  5. additional time provided to a person to care for a disabled child;
  6. time when the employee was not at his workplace for any other reason.

The amount of earnings includes all payments from the employer, including bonuses, products in kind, as well as other payments.

Compensation

Severance pay is not the only amount a person will receive upon dismissal. So, he is entitled to some additional compensation.

For example, if an employee notified according to the rules expresses a desire to leave the enterprise early, he informs the employer about this, and he, in turn, must calculate an additional amount in the form of compensation for the time that he did not use after the notification. Those. If the dismissed employee worked for 5 days after notification (instead of 2 months) and expressed a desire to be dismissed earlier, he must receive additional compensation in the amount of average earnings for the time not worked until the end of the notice period in the case where the employer agrees to let him go in advance. Also, be sure to make sure that you are paid wages for the time worked in the company, as well as unused vacation (if it was actually not used).

Second and third month

If you were laid off due to a reduction in headcount or staff, then know that you have the right to maintain your average earnings for the next two months after the day you were officially laid off. This rule is valid until the moment of official employment, but no more than two months after dismissal. Thus, an unemployed person has some guarantees provided for him by the state, in order to provide him with a certain amount of money until he gets a new job.

If an employee applies for employment to the Employment Center within two weeks after dismissal, then he can count on another extra month of subsidies from the former employer (if he did not find a job).

The decision to extend the period is made by the Employment Center, and payment is made at the expense of the former employer. This kind of additional benefit remains until the person is officially employed (during these 2-3 months). As soon as a citizen finds a new job, payments stop. If a person starts a new job in the middle of the month, then the previous employer only reimburses unemployed time.

For pensioners

Persons who have reached retirement age and have been laid off, Labor Code in 2019, no special features are provided for payments.

So, a dismissed pensioner can count on:

  1. Severance pay, which is equal to average monthly earnings. In case local normative act employer has several larger size, then the pensioner should receive exactly this amount.
  2. Compensation for average earnings for two (three) months while searching for a new job.

We remind you that reaching retirement age is not the main criterion for dismissing such employees in the first place.

By law, they have exactly the same rights to further work or payment of benefits in the event of layoffs as other employees. In addition, people who have reached retirement age have higher qualifications and productivity, which, on the contrary, can be considered a positive factor against the reduction of such an employee.

How to get a?

Decor

Based on current legislation, all settlements with the employee regarding remuneration for time worked and severance pay must be processed and made on the last day of work of the employee subject to staff reduction. Moreover, before this day he must submit a bypass sheet drawn up according to the rules with information that he has no debts to the enterprise.

In order to receive amounts due in the next two (three) calendar months after dismissal, it is necessary, at the end of the month during which the dismissed employee did not find a new job, to contact the former employer for a settlement.

In this case, the employee must confirm his words with documents (provide a certificate from the Employment Center, show his work record book). Only after this can the settlement department employee begin processing payments. If such documents are not provided, no compensation will be provided.

Where are they paid?

All payments due to an employee who has been laid off are paid by the employer locally previous job employee.

So, if it is necessary to compensate for the time spent searching for a new job within two calendar months after dismissal, then you must submit the relevant documents to the department responsible for payments at the previous place of work from which the person was dismissed.

If you need to make payments for the third month, you must contact the same employer, but you must have a certificate from the Employment Center with you. IN modern world it is very important to know your rights, especially if they affect the area labor relations, since employers often take advantage of the illiteracy of their workers. If you have been laid off and don’t know what to do and how to go through this procedure, then contact a competent lawyer who will help you and tell you what to pay attention to when laying off, and also indicate what payments and rewards you can count on.