The employer's right to reduce staff. Provide written notice of layoffs

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 carrying out 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 compiles 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 carried out 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 a written act on this fact, which during the proceedings can act as evidence in court.
• Along with notifying the employee, 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 Employment Center must indicate a complete list of 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 made 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 of the enterprise’s activities and rational use of its 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 constitutional right of the employee 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. All things being equal, there are a number of preferences for reinstatement:

• 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 a pension, is carried out on a general basis. 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 an exact list of employees to be laid off.
• 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 candidate identified 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 appropriateness and legality of the decision made. In this case, the union is obliged to provide solutions to the manager within the next three days. If no general decision has been made, 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 of 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 cannot reduce the leadership position of the trade union. 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 head of a trade union that is not related 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 this consent to dismissal is not received, it 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 act.

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 is both the right and obligation of every employer.

Unstable periods in the life of Russia are much more common than times of prosperity and general contentment. Therefore, all managers and their employees must be prepared for the fact that staff reductions and related layoffs may be required at any time. The editors of the site will help you understand how this procedure occurs, what you need to know so that temporary difficulties do not bring big troubles for the employer, and what payments are due to employees upon dismissal due to staff reduction.

One of the biggest troubles for a company is forced dismissal due to staff reduction. Let's consider what the 2018 compensation is, which must be paid to employees excluded from the state by the employing organizations, what are the documents that need to be completed, as well as the deadlines that need to be met. We will also tell you what rights of employees cannot be violated in the event of staff reduction or liquidation of the enterprise.

Who can't be laid off?

The current labor legislation defines a list of persons who cannot be fired during staff reductions. These include:

• women who are on maternity leave (Article 265 of the Labor Code of the Russian Federation);
• pregnant women;
• women with children under three years of age;
• single mothers raising a child under 14 years of age (disabled child under 18 years of age);
• other persons raising children under 14 years of age (disabled children under 18 years of age) without a mother (Article 261 of the Labor Code of the Russian Federation).

You also cannot dismiss employees due to staff reduction who are on sick leave or on vacation. Exception - or termination of the activities of an individual entrepreneur. The reduction of minors is permissible conditionally: for this it is necessary to obtain the consent of the relevant state labor inspectorate and the commission for the affairs of minors and the protection of their rights (does not apply to the situation of liquidation of an enterprise).

Dismissal due to staff reduction: step-by-step instructions - 2019

Step 1. The procedure for staff reduction (as well as liquidation of an organization) begins with the appropriate. In this document, the manager must indicate:

• which staffing units and in what quantity are subject to exclusion;
• the reason for the reduction in staff;
• list and timing of activities that need to be completed before the date of dismissal;
• data of responsible persons.

A sample dismissal order for staff reduction looks something like this:

Obviously this is a general order. It is compiled in free text form. It must be familiarized with the signature of the HR specialist responsible for the listed activities.

Step 2. Compliance with the notice period is mandatory, but there are some exceptions. For example, it happens that an employer wants to dismiss an employee before the expiration of a two-month period. However, he has the right to do this only with his consent, and in writing. If a person is against it, no one has the right to force him. In case of dismissal earlier than the appointed date, employees who agreed to this are paid additional compensation upon dismissal for staff reduction in the amount of average earnings in proportion to the time remaining before the expiration of the notice of dismissal.

Step 3. Before dismissing an employee, the employer is obliged to offer him another available job - a vacant position. Moreover, it may correspond to the qualifications of a specialist, or it may not. Other work may be lower paid or in a lower position. This article of the Labor Code, with all the reservations, gives free rein to the manager who can offer, say, the chief accountant the position of a cleaner. Although in practice it usually does not come to this.

According to the provisions of Article 179 of the Labor Code, employees with higher qualifications and labor productivity receive an advantage when optimizing staffing: they are required to be fired last. But often managers neglect this responsibility. A simple rule applies here: higher productivity and qualifications must be documented. To do this, they use data on the fulfillment of production standards, the quality of work performed, and the absence of defects. Higher qualifications can also be indicated by the employee having primary, secondary, higher professional education, as well as receiving a second education, having an academic degree, academic title, etc.

It can be carried out according to a special procedure with passing an exam. It is advisable to do this if the procedure for dismissal due to reduction of staff or number of employees causes difficulties for management. Such independent assessments of qualifications are provided for in the relevant regulations on their conduct. You can also specify in the organization’s local acts the compliance with professional standards approved by the Ministry of Labor for those employees who will be the last to be laid off. If labor productivity and qualifications are the same, the manager usually decides together with the trade union. The following may be taken into account:

• having two or more dependents;
• absence of other independent workers in the family;
• work injury or occupational disease received in this organization.

It is important to carefully consider these factors, since if a disagreement arises, a person can go to court and if the management did not take something into account or violated the established procedure for dismissal, the employee will be reinstated in his previous place, and the organization will have to pay him a salary for forced absence.

Step 4. In addition to the upcoming staff reduction procedure, the employer is also obliged to notify the trade union about this. A document is sent to the employment service with information about the position, profession, specialty, qualification requirements, and payment conditions for each specialist being laid off. This is done as required. All information must be submitted to the employment service and the trade union within the same time frame as notifying the workers themselves. That is, at least two months before the layoff. In case of mass dismissal - no later than three months. Typically, mass dismissal is considered to be the dismissal of more than 20 people at the same time.

For organizations that did not report the alleged mass layoffs or that violated the deadlines for providing information, the employment service must send information to the prosecutor's office for taking action against the perpetrators. The trade union (if there is one in the company) is notified of staff reductions in any form. In the notification, the employer is required to indicate the date, indicate the number of staff units being reduced, and provide a link to the order. The date is extremely important, because it is from this date that the two months for subsequent dismissal of employees will begin.

Step 5. When reducing staff, the first responsibility of the company is to provide employment for the laid-off employees. The law directly obliges the employer to do this constantly from the moment of notification of staff reduction, and at least twice - at the time of warning and immediately at the time of dismissal. If vacancies appear within this two-month period, they must immediately offer them in writing to the employees being laid off and under no circumstances hire new people to fill them. First of all, a person is offered a vacant position similar to the previous one. In the absence of such, the employer must offer the subordinate a lower position in which he can work, taking into account education, qualifications, work experience and health status. If the employee agrees, the transfer procedure is formalized. If he refuses, a written refusal is issued in the form of a special act. This gives the employer the right to offer this position to another employee who has been laid off. All vacancies must be included in the staffing table with a set salary (rate) and be provided with a job description. If there are no vacant positions, the manager must draw up an act stating the impossibility of transfer. These documents are drawn up in any form.

Step 6 Based on the order to reduce staffing positions, it is necessary to issue personal orders for all persons who must be dismissed. They should be familiarized with the personal signature of each of the laid-off employees personally two months before dismissal. The two-month period is supposed to be counted from the next day after the employees are notified. Upon completion of a two-month period from the date of warning to employees, the employer must issue a new order for the organization approving its decision to reduce the number of staff and introducing a new staffing table. Remember that you can fire a person only after removing his position from the staff list. Moreover, in such a staffing table there should be no homogeneous vacant positions, otherwise the laid-off employee will be able to be reinstated at work through the court.

Termination of an employment contract with an employee is formalized by order using a special form approved by the State Statistics Committee of Russia. He must be familiarized with the order against his signature. If this is not possible, say, the person does not want to sign for familiarization, then the order must be written “refuse to familiarize with a signature.” On the day of dismissal, the employer is obliged to give it to the employee with the following entry: “Dismissed due to a reduction in the number of employees of the organization, paragraph 2 of part 1 of Article 81 of the Labor Code of the Russian Federation.” If on the day of dismissal the employee did not pick up his work book, he must be sent a notice with an invitation to come for the work book or allow him to send it by mail. From the day this document is sent, it is considered that the employer has fulfilled the obligation to issue a work book and is now not responsible for the delay in its issuance (Article 234 of the Labor Code of the Russian Federation). He is freed from the need to pay the employee the amount of wages he did not receive during the delay. In addition to the work book, the employee has the right to receive copies of other documents related to his work, but only upon his written application.

Step 7 In addition, it is necessary to pay severance pay and compensation in case of unemployment in the first two months after staff reduction. We talked about how to calculate all the necessary amounts in a separate section. It provides details of redundancy dismissals, and 2019 compensation is calculated using examples. All payments in this case are regulated; in particular, it says about the timing: “no later than the next day after the presentation of the request for payment.” Each employee who is subject to staff reduction must receive severance pay in the amount of average monthly earnings. In addition, he retains his average monthly earnings for another two months or less until he finds another job. Moreover, in order to receive compensation for the second month, the former employee must contact the employment service within two weeks after dismissal and not find a job until the end of the second month. In this case, his average monthly earnings will be retained for the third month. But only with a certificate from the employment service. By the way, when retired due to staff reduction, pensioners receive severance pay and other compensation like ordinary employees. And the head of the organization, his deputies and the chief accountant upon dismissal due to a change of owner have the right to receive compensation in the amount of not less than three average monthly earnings.

Responsibility for violation of the staff reduction procedure

The employer may be punished for each violation of the procedure for dismissing an employee due to redundancy. For violation of the deadline for payments upon dismissal, he will be obliged to pay the entire amount due to the employee, plus interest in the amount of not less than 1/150 of the key rate of the Central Bank (equal to the key rate) on the amounts not paid on time for each day of delay (Article 236 of the Labor Code), as and in case of delay in issuing a work book.

In case of failure to fulfill obligations to provide available vacancies, the employer may be fined under Art. 5.27 Code of Administrative Offences. It must be remembered that violations of labor legislation are monitored by the Federal Labor Inspectorate and the Prosecutor's Office. An employee who decides that his rights have been violated can first contact his trade union, if the company has one. In this case, employers are required to respond to the application within a week. If the problem cannot be solved, the person may contact the labor inspectorate and the prosecutor's office, and this will cause an unscheduled inspection of the employer.

In addition, anyone with a labor dispute can go to court. He can do this within three months from the day he learned or should have learned about a violation of his labor rights. And in disputes about dismissal - within one month from the date of delivery of a copy of the dismissal order or from the date of issue of the work book. At the same time, employees are exempt from paying fees and court costs. If dismissal or transfer to another job is recognized as illegal, the employee must be reinstated in his previous job by the body considering the individual labor dispute. In this case, he will be paid the average salary for the entire period of forced absence or the difference in earnings for the entire period of performing lower-paid work, as well as for moral damages. The decision to reinstate an illegally dismissed employee or to reinstate an employee who was illegally transferred to another job to his previous job is subject to immediate execution.

You work for yourself, you work, and then suddenly - the boss announces a reduction in staff. Unfortunately, many have encountered this situation.

Many questions immediately arise that require clarification. For example, what payments should an employee receive if he is laid off? What is the legal way to fire an employee? Is it possible to lay off pensioners and pregnant women?

Your position is no longer needed

One of the first questions that arises when an employee is laid off is: “What payments am I entitled to?” A similar situation occurs in both large and small companies. By law, layoffs must be announced no less than two months in advance.

The employee must sign that he was notified on time. If an employee refuses to sign, a special act is drawn up. If this rule is not followed, the person may be reinstated in his position. Once signatures are received, the company is required to offer new vacancies that match the employee's specialty.

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

Retrenchment of an employee. Payments. Labor Code

This topic is regulated by Article 178 of the Labor Code of the Russian Federation. What she's talking about:

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

More about amounts

So, what payments are accrued to an employee when staffing is reduced? Firstly, this is financing in the form of average monthly income. It is paid within a period of up to 60 days. Secondly, a benefit that is issued immediately at the time of dismissal.

Thirdly, the manager is obliged to compensate all arrears of wages, as well as unused vacation. Fourthly, in special cases, the employee may be accrued two weeks' average income. This applies to moments when he does not agree to transfer to another service in cases considered in the legislation. Also, payments to an employee upon layoff are made in connection with:

• with his conscription into the army;
• with the reinstatement of the person who previously held this position (returning from maternity leave or appealing through the court);
• with refusal to move to another area;
• with his recognition as incapable of work;
• with refusal to work due to changes in the terms of the contract.

Here you need to remember that personal income tax is not withheld from the obligatory amounts. The enterprise is obliged to pay monetary compensation both in the event of liquidation of the company and in case of violations in the drafting of the employment contract (if they were not caused by the fault of the employee).

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

Law violation

The fact of illegal dismissal is often encountered in everyday life. The employer wants to save his money and can take advantage of ignorance of labor laws. Anyone who has been laid off, having collected evidence of a violation of his rights, can always file a claim in court. The filing deadline is thirty calendar days from the date of receipt of a copy of the dismissal order or issuance of the work book. Valid reasons for being late in filing a claim may increase the time it takes to accept a claim. Also, a reason for filing a lawsuit is the refusal to pay interest on overdue compensation due to the worker.

Conditions for the “correct” reduction

If the manager decides to reduce the number of employees, then a number of rules must be followed:

1. Real reduction of workers. The fact of dismissal is entered into the organization's staffing table. An order is also issued to approve the new schedule.
2. According to Article 179 of the Labor Code, it is necessary to provide in writing a number of other vacancies that correspond to the employee’s qualifications.
3. According to Article 180 of the Labor Code, the boss must notify the employee no later than two months before dismissal. The employee must sign that he was warned on time. The manager also approves the plan for communicating information about the reduction. In this case, a newspaper, bulletin board, meeting can be used.
4. A selective trade union body must consider the issue of dismissal. It consists of a lawyer, a personnel director, and a representative of the trade union committee. An order is also issued regarding the creation of the commission.
5. According to Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004, the responsibility to confirm the legality of dismissal and compliance with its procedure lies with the head of the organization.

Who should not be fired

Based on Article 261 of the Labor Code, a pregnant woman cannot be laid off. If she works under a fixed-term contract, the company is obliged to renew the agreement after this period. The woman will only need a medical certificate confirming her situation.

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

There is one nuance in the field of education. As for the reduction of teaching staff in educational institutions, this action is possible only after the end of the school year.

Useful subtleties

1. Calculation of payments when laying off an employee who is a part-time employee is not made. The reason for this is the presence of a principal place of business.
2. A worker who has been laid off has the right to receive an early pension. At the same time, he needs to issue it no earlier than two years before the legal date.
3. If an employee has worked in an organization for less than six months, then compensation payments for unused vacation when the employee is laid off are still made.
4. Severance pay is not subject to the unified social tax, pension contributions, or personal income tax. As well as insurance contributions to the Social Insurance Fund. Compensation for unrealized vacation days is subject to personal income tax, but not unified social tax.
5. If payments to an employee upon layoff are not made from budgetary funds, then they are taken into account as part of the expenses going towards wages. Thus, the income tax is reduced (clause 9, article 255 of the Tax Code of the Russian Federation).
6. An employer can fire an employee without warning, but all payments must be retained. An agreement of this kind, however, like all others, must be drawn up in writing. If the worker and the head of the organization do not come to an agreement, then the reduction should occur on a general basis.

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

Let's take the following example. The employee began his career on 09/01/07 and was laid off on 04/23/09 (received a notice from his superiors). He resigned on 6/24/09. For 12 months, the salary amounted to 126 thousand rubles. Start of work in the new organization - 09/05/09. We will calculate the average earnings, the amount of benefits and compensation for unrealized vacation.

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

First, we will calculate the benefits due. To do this, divide the entire salary amount by 12 months and by the number of working days. We get average earnings per day - 357.14 rubles. We multiply this figure by thirty calendar days and get 10,714.2 rubles.

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

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

Early dismissal of an employee

Article 180 of the Labor Code states that employees of organizations are notified of layoffs two months in advance. The same article contains a clause that states that a boss, by agreement with a subordinate, can terminate an employment contract without waiting for the stated date. All payments in case of early dismissal of an employee are preserved. But he will lose compensation if the basis for termination of the contract is a notice of voluntary dismissal. Thus, in order for early layoffs to occur with all legal payments, the following must be done:

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

Compensation payments when an employee is laid off are not made if the application states “I ask you to dismiss me of my own free will.” Or there is a letter from the new manager requesting a transfer to another organization. If the application states “I request to be dismissed due to the reduction of my position before the expiration of the term,” then the mandatory consent of the employer will be required.

Going to court

Since it is beneficial for the employer to dismiss an employee at his own request, the latter may be subject to psychological pressure. And this is a reason to go to court. Coercion to write a statement will need to be proven. When considering a labor dispute, the court pays attention to the following points:

1. What are the reasons for writing a statement - the employee’s own desire or coercion.
2. What are the circumstances of its registration?
3. How clearly the appeal is written and whether it contains the necessary details.
4. What are the worker's intentions?
5. What is the dismissal procedure?

If the court finds the termination of the employment relationship illegal, then the manager is obliged to reformulate the grounds for dismissal, as well as make all payments to the employee upon layoff. The option of reinstatement to the previous position with monetary compensation for forced absence is also possible.

Dismissal of a retired employee

When laying off a retired employee, the following payments must be made:

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

If an employee gets sick while looking for a new job

An employee has the right to submit sick leave to the manager or to the territorial body of the Social Insurance Fund within thirty days from the date of termination of the employment relationship. Sick leave is paid in the amount of 60% of the employee’s average income.

Reduction under a fixed-term contract

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

the employer has the right to determine independently. But setting out such a basis in a reduction order is not enough for legal dismissal. Read the article about what could be the basis for a reduction.

The reality of layoffs as a condition for the legality of dismissal

Dismissal of an employee under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation (reduction of staff) will be legal only if a reduction in staff or number (or both) of workers actually took place. Let us explain the concepts of “downsizing” and “staff reduction”:

Not any change in the organizational structure of an enterprise is grounds for dismissal of employees due to reduction, since it may not lead to a reduction in numbers or staff (for example, renaming and moving positions from one division to another). The fact of reduction must be confirmed by making appropriate changes to the staffing table, i.e. it must be clear that staffing units for certain positions or specific positions have been excluded.

The actual basis for staff reduction: what can be indicated in the order

Labor legislation does not define the goals and grounds for reducing staff or the number of employees, and also does not oblige the employer to justify its decision to reduce the number of employees.

Indeed, the employer has the right to decide for himself how to arrange personnel at the enterprise in order to achieve the desired economic effect. The main thing during layoffs is compliance with the guarantees provided for by the Labor Code of the Russian Federation in relation to dismissed employees. This is confirmed by judicial practice (ruling of the Constitutional Court of the Russian Federation dated December 18, 2007 No. 867-О-О, cassation ruling of the Amur Regional Court dated June 1, 2011 in case No. 33-2509/11).

There can be many reasons that prompted an employer to make a reduction. Let's list some:

• economic - reduction in the volume of production of goods, performance of work or provision of services, suspension of activities, increase in taxes;
• structural - changes in the management system, organizational structure (for example, due to the identification of ineffective units), reorganization;
• technological - automation of production, replacement of equipment with more advanced ones, introduction of innovative technologies.

The above does not mean that the order for reduction does not need to indicate the justification for the relevant measures. On the contrary, it must be indicated. At the same time, the employee’s mere disagreement with the justification for the reduction (without additional arguments) is not enough to declare the dismissal illegal. But if facts are revealed indicating that the reduction is fictitious, the court will reinstate the employee at work.

Signs of a fictitious reduction: judicial practice

Often, employers use layoffs to get rid of unwanted employees, or simply do not follow the layoff procedure established by the Labor Code of the Russian Federation. Let's consider several situations that may arise as a result of neglecting the rules of reduction or attempts by the employer to circumvent the law:

1. The position was reduced, but at the same time a new position with similar responsibilities was introduced. Under such conditions, there is a very high probability that the dismissal will be declared illegal due to the absence of an actual reduction in staff (ruling of the Supreme Court of the Republic of Chuvashia dated 04/18/2016 in case No. 3-1840/2016, appeal ruling of the Kurgan Regional Court dated 08/14/2014 in case No. 33-2429/2014 ).
2. The position has been reduced, while a new position has been added, which in addition to similar responsibilities provides additional ones. According to some courts (usually the appellate and subsequent courts), if the need for a certain job remains and the need to expand the responsibilities of the position, there are grounds for changing the terms of the employment contract, but not for layoffs. Therefore, dismissal in such cases is often considered illegal (appeal ruling of the Kurgan Regional Court dated August 14, 2014 in case No. 33-2429/2014).
3. At the time of dismissal of the employee, his position is still not excluded from the staffing table. In this situation, reinstatement of the employee at work by the court is the most likely outcome of the labor dispute. Therefore, it is important to make timely changes to the staffing table (appeal ruling of the Moscow Regional Court dated February 26, 2014 in case No. 33-2832/14).

Contents of the order to lay off workers

The employer's decision to make redundancies must be documented. In organizations, issues of reduction may be referred by the charter to the competence of a sole or collegial management body. In the first case, an order is drawn up, in the second - a protocol. Individual entrepreneurs formalize the layoff of employees by order.

The reduction order must include:

• an indication of the reason for the reduction in the preamble;
• the specific number of positions to be eliminated within certain positions and/or positions to be eliminated;
• specific instructions - on the preparation of a new staffing table, on the creation of a commission to determine the benefits of remaining at work, on notification of layoffs of employees, the trade union, the labor inspectorate, on offering vacancies to laid-off employees.

As can be seen from the article, the specific grounds specified by the employer in the order for layoffs are not significant in the context of the legality of dismissal. When carrying out appropriate activities, the employer should pay more attention to confirming the reality of the reduction.

Due to possible difficulties in the economy, some companies are already beginning to seriously think about personnel optimization. Simply put, about cuts. How to organize these events correctly is in our article.

We issue an order and notify the competent authorities

First of all, the enterprise should issue an order to reduce staff and introduce a new staffing table. An alternative option is to make appropriate changes to an existing document (by issuing a corrective order).

The order to reduce staff must contain information about:

· reduced staff positions;

· officials responsible for carrying out reductions.

After this, the following departments are notified about the staff reduction:

· employment authorities;

· primary trade union organization.

Notification in writing is sent no later than two months before the date of dismissal of the employee. In case of mass layoffs, this period increases to three months. The basis is paragraph 2 of Article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment in the Russian Federation”.

Keep in mind: whether a dismissal is classified as mass or not is determined by special criteria that are enshrined in the relevant industry and territorial collective agreements.

At the same time, the primary trade union organization must be notified within a similar time frame. He talks about this.

If the notice procedure or deadlines are not followed, the dismissal of employees may be considered illegal.

Please note: if union members are laid off, the employer is obliged to request a reasoned opinion from the elected body of the primary trade union organization. The union must submit such an opinion within 7 working days. Otherwise it should not be taken into account. If the trade union does not agree with the corresponding dismissal, then it must conduct additional consultations with the employer, the results of which are documented in a special protocol. In situations where it is not possible to reach an agreement, the employer, after 10 working days from the date of the request, has the right to make a final decision on the reduction. The dismissal of a trade union member occurs within a month from the receipt of a reasoned opinion -.

Determining the circle of “privileged” persons

Thus, when reducing staff or numbers, preferential rights should be given to employees who have higher labor productivity and qualifications. The legal basis for this is Part 1 of Article 179 of the Labor Code.

If employees have equal qualifications and labor productivity, then they should leave at work first of all (Part 2 of Article 179 of the Labor Code of the Russian Federation):

· family workers with two or more dependents - disabled family members who are fully supported by the employee or receive assistance from him, which is their constant and main source of livelihood;

· persons in whose family there are no other workers with independent earnings;

· employees who received a work injury (occupational disease) while working for this employer;

· disabled people of the Great Patriotic War and combat disabled people;

· workers who improve their skills at the direction of the employer without interruption from work.

In addition, certain categories of employees who have a preferential right to work can be enshrined at the legislative level - for example, by the provisions of Article 14 of the Law of the Russian Federation of May 15, 1991 No. 1244-1 “On the social protection of citizens exposed to radiation as a result of the Chernobyl disaster NPP" and Article 21 of the Law of the Russian Federation of July 21, 1993 No. 5485-1 "On State Secrets".

It should be borne in mind that there are categories of employees who, as such, cannot be fired when staffing is reduced. These include (Article 261 of the Labor Code of the Russian Federation):

· pregnant women;

· women who have a child whose age is less than three years;

· a single mother who is raising a disabled child under 18 years of age or a child under 14 years of age.

We warn employees

Retrenched employees should be warned about optimization under signature. The deadline is no later than two months before the date of dismissal of a particular employee. Base – .

Please note: before the expiration of the specified period, the employment contract can be terminated with the written consent of the employee. In this case, he must be paid compensation in the amount of average earnings, which is calculated in proportion to the time remaining before the expiration of the notice of dismissal.

It must be remembered that in cases of violation of the procedure or deadlines for notification of reductions, the corresponding notification may be considered illegal.

We offer vacancies

Optimized employees should be offered other vacancies that are available at this employer.

The employer is obliged to offer those vacancies that (taking into account the state of health):

· correspond to the qualifications of the employee;

· are of a subordinate or lower-paid nature.

Please keep in mind: vacancies that an employer has in another location can only be offered in cases where this is provided for in the provisions of a collective or labor agreement - part 3 of Article 81 and.

The employer is obliged to offer vacancies throughout the entire period of staff reduction - see, for example, the conclusions contained in the Ruling of the Supreme Court of the Russian Federation of June 10, 2011 No. 20-G11-6 and paragraph 29 of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2.

We terminate employment contracts

Measures to optimize personnel are formalized by a special order, which is drawn up according to a unified form. At the same time, records of dismissal due to staff reduction are made in the work books. Reason – paragraph 2 of Article 81 of the Labor Code.

On the last working day, the employee must receive the following payments:

· final payment of wages (including bonuses, allowances and other similar payments);

· monetary compensation for all days of ungranted leave;

· severance pay in the amount of average monthly earnings.

It should also be remembered that in situations where the employer, by agreement of the parties, dismisses an employee before two months, the employee has the right to receive additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal. Reason – part 3 of article 180 of the Labor Code.

Employees retain their average monthly earnings for the period of employment, but for no more than 2 months from the date of dismissal (including severance pay). Base – .

However, to receive average earnings for the second month, the employee must provide the employer with:

· corresponding statement;

· work book (it should not contain a record of employment at the end of the second month from the date of dismissal).

In addition, an employment or collective agreement may provide for (Part 4 of Article 178 of the Labor Code of the Russian Federation):

· other cases of payment of severance pay;

· increased amounts of severance pay.

On the last working day, the employee must be issued the following documents:

· employment history;

· certificate of the amount of earnings for the last two calendar years.

Please note: the employee has the right to appeal dismissal in district court. To do this, he must submit an application to declare the dismissal illegal, reinstated at work and recover average earnings for the period of forced absence. The dismissed employee is given a month to do this from the date of delivery of a copy of the relevant order, the issuance of a work book, or the day on which he refused to receive the dismissal order or work book. Moreover, the ex-employee is not obliged to insist on his own reinstatement. He may, for example, limit himself to demands for the recovery of average earnings for the period of forced absence and changing the wording of the grounds for dismissal.

Summary:

1. The enterprise must issue an order to reduce staff and introduce a new staffing table.
2. Notification in writing is sent no later than two months before the date of dismissal of the employee.
3. If members of a trade union are laid off, the employer is obliged to request a reasoned opinion from the elected body of the primary trade union organization. The union must submit such an opinion within 7 working days.
4. When reducing staff or numbers, priority rights should be given to employees who have higher labor productivity and qualifications.
5. Retrenched employees should be warned about optimization under signature. The deadline is no later than two months before the date of dismissal of a particular employee.
6. Vacancies that an employer has in another locality may be offered only in cases where this is provided for by the provisions of a collective or labor agreement.
7. Measures to optimize personnel are formalized by a special order, which is drawn up according to a unified form. At the same time, records of dismissal due to staff reduction are made in the work books.
8. Employees retain their average monthly earnings for the period of employment, but no more than 2 months from the date of dismissal (including severance pay).
9. An employee can also receive payment for sick leave in the event of incapacity for work within 30 calendar days from the date of dismissal.
10. The employee has the right to appeal dismissal in the district court. To do this, he must submit an application to declare the dismissal illegal, reinstated at work and recover average earnings for the period of forced absence.