Abbreviation: what an employee needs to know. How is the reduction of employees at the enterprise carried out?

When an organization ceases operations or needs to downsize for a compelling reason, the employer can voluntarily dismiss an employee.

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How to correctly formalize dismissal due to staff reduction in 2019? When dismissing an employee in order to reduce the number of employees, it is necessary to comply with applicable rules and regulations.

It is necessary to properly formalize the process and pay all due compensation. How is the dismissal procedure carried out in 2019 when there is a reduction in numbers or staff?

General points

First of all, the employer needs to know that wrongful dismissal can cause very negative consequences.

An employee can file a lawsuit within a month after dismissal in order to appeal the employer's decision.

The following may be claimed as a claim:

• reinstatement;
• changing the wording of the notice of dismissal in;
• compensation for forced absence.

Satisfaction of the claim depends on the availability of evidence presented by the parties.

So the court will not be able to reinstate the plaintiff if he does not fall into the category of employees who are not subject to dismissal or when carrying out a procedure according to the law.

The employer has the right to argue that there are no violations on its part. Confirmation of the legality of dismissal of an employee is:

How to correctly carry out the staff reduction procedure in 2019?

What it is

Downsizing involves reducing the number of positions or the number of personnel.

For example, an organization employs several people in the same position, but after layoffs, one or two employees remain.

From a logical point of view, everything is simple. The employer decided that it was necessary to reduce the number of employees and fired the excess employees.

But from the perspective of labor law, the situation is complicated by the need to comply with certain rules. Staffing refers to the total number of positions existing in an organization.

Accordingly, staff reduction means that some positions are eliminated from the staffing table.

And since the organization does not have a position appropriate for an employee, the extra employee may be fired.

But among other things, there are nuances regarding the dismissal of certain categories of citizens. Thus, some persons, due to their status, cannot be dismissed except.

Therefore, when staffing is reduced, it is necessary to offer such employees other vacancies. Dismissal is allowed only in the event of an absolute lack of suitable positions or if the employee refuses to transfer.

The general reduction scheme looks like this:

1. The employee is notified of the upcoming layoff.
2. Management issues a dismissal order.
3. Dismissal is carried out with full payment.

The main reasons for the need

To legally implement a staff reduction, it is necessary to have sufficient justification that will convince the labor commission. The employer must prove that he has no other choice but to eliminate the position.

The law provides the following reasons for dismissal at the initiative of the employer in connection with staff reduction:

• termination of the organization's activities and its complete liquidation;
• reduction in the number of employees or positions due to certain circumstances.

It is worth noting that many enterprises, when reducing staff, prefer that employees resign of their own free will.

This is explained by the fact that in this case no severance pay needs to be paid. Upon dismissal due to staff reduction, the following must be paid:

• salary for days actually worked;
• compensation for unused;
• average salary for the period of employment.

Employee rights

When making a layoff due to staff reduction, you need to be aware of some features.

In particular, we are talking about workers' rights. For example:

Important! An employee must receive notice of layoffs no later than two months before the layoff. During this time, the employee can find another job and resign early.

Who can't be fired

When an employee hired for seasonal work is laid off, he must be notified no later than 7 days before the date of dismissal.

Payment procedure and terms

In case of staff reduction, payment deadlines must be met. But there is no need to pay all due amounts on one day.

Immediately on the day of dismissal, the laid-off employee must receive:

• accrued wages for all days worked;
• compensation for unused vacation;
• one month's severance pay.

A month after the layoff, the dismissed employee is not entitled to any payments. But after the second month, the laid-off employee can receive compensation in the form of monthly pay.

To do this, the employee must provide the former employer with no new employment record.

For your information! Receiving compensation due to the lack of other work after layoff is possible only if the dismissed employee has registered with the Employment Center and received official status.

Moreover, you should contact the Central Work Center within two weeks after the layoff. In some cases, the employer must compensate for the third month after dismissal.

Video: staff reduction procedure - what it looks like and its nuances

The basis is a document issued by the Employment Center about the impossibility of employment. Compensation for the second and third months is paid within the terms agreed with the recipient.

Since this payment is not a salary, it is not necessary to pay it on the day when working employees receive their wages.

What nuances may arise?

When planning staff reductions, the employer should be aware of the intricacies of dismissal. The nuances concern the moments when an employee cannot be dismissed without the consent of certain structures or when compensation for absence from work is paid even after the expiration of the standard two-month period.

As a rule, the features concern the least protected categories of the population - pensioners and minors.

These categories of workers are primarily considered by the employer if it is necessary to reduce staff or eliminate certain positions, but the state strictly guards the interests of these individuals.

For pensioners

According to labor law, employees who continue to work in retirement are laid off in the standard manner and on generally accepted grounds. There are no differences as such in the dismissal of a pensioner.

But at the same time, a dismissed pensioner, if he contacts the Employment Center and does not find a new job, has the right to demand compensation for lack of work for the third month after dismissal.

In addition, in some cases, a pensioner can receive up to six months. The decision to award payments is made by the court.

In this case, various circumstances are assessed, such as the pensioner’s income level, the importance of continuing to work, etc.

For minors

In relation to minor citizens, labor legislation contains quite a lot of nuances. This includes the employment procedure, acceptable types of activities, and level of responsibility.

That is, it can be quite difficult to employ a minor citizen. But it is even more difficult to fire such an employee.

First of all, it should be noted that age in this case cannot be considered a minus when identifying the advantages of individual workers.

Among other things, the law directly prohibits the dismissal of a minor citizen at the initiative of the employer, even in the event of staff reduction. You will need to obtain the consent of the State Labor Inspectorate for persons under 18 years of age.

The inspectorate will need to provide evidence that the reduction is necessary and it is not possible to maintain the position of the laid-off employee.

It is also necessary to prove that other vacancies cannot be offered due to the employee’s age (increased workload, night work, etc.).

What are the human rights of retrenchment? What guarantees will the state provide to different categories of workers? To find out, you need to understand the rules for laying off employees in different situations.

Order of reduction

When laying off an employee, the boss must comply with the rules for terminating the employment contract provided by law. Otherwise, the dismissal of an employee may be considered illegal, and he has the right to sue the organization.

The procedure for terminating an employment contract with a subordinate upon dismissal due to staff reduction:

1. An order is issued regarding upcoming reductions based on the reduction in staff numbers.
2. Employees subject to dismissal are warned of termination of their employment contract.
3. Other vacancies in the company are offered to persons who have been laid off.
4. Those who do not agree with the proposed positions write a refusal.
5. Employees are notified in writing that there are no other vacancies in the organization.
6. A formal dismissal order is issued.

If the employment relationship is terminated due to the collapse of the enterprise, the dismissal algorithm will be the same, only without offers to take another position.

Important! You can lay off an employee only by notifying him 2 months in advance. During this period, a person can voluntarily take a vacation or leave early.

What guarantees exist for subordinates?

The rights of a redundant employee are determined by his belonging to one or another category. If the staff is reduced, not all employees will be able to get another vacancy.

Who can be offered another vacancy?

According to Part 1 of Article 180 of the Labor Code of the Russian Federation, if the number of subordinates is reduced or a department is abolished, the laid-off employees may be offered another position. However, according to the law (Article 179 of the Labor Code of the Russian Federation), first of all it is necessary to offer vacancies to people with higher qualifications and labor productivity compared to colleagues.

Important! The offered position may pay less than the previous one, but it must be suitable for the person based on his qualifications and state of health.

Who will be transferred to part-time or part-time work?

In accordance with Article 74 of the Labor Code of the Russian Federation, a boss can introduce a part-time work shift for his subordinates if there is a threat of mass layoffs due to changes made to the organization’s staffing table.

For reference! In accordance with Resolution of the Council of Ministers of the Russian Federation dated 02/05/93 No. 99, dismissal will be massive if it is planned to lay off more than 50 people within 1 month.

The maximum period for which a part-time work shift can be introduced is six months. After the specified time has passed, the subordinate must be transferred to the previous mode of work.

Most often, the following groups of subordinates apply for part-time shifts:

• highly qualified people;
• subordinates who cannot be laid off (subject to certain circumstances).

The boss must notify employees of changes in the working day no later than 2 months in advance.

A person is free to refuse to work part-time. In this case, the day of termination of the employment contract will occur on the last date of the two-month notice about changing the duration of the shift, unless the subordinate leaves early.

Who has advantages and benefits during redundancy?

The rights of employees when they are laid off due to a reduction in staff will differ. As a rule, those who have certain circumstances that prevent dismissal have greater advantages.

Who shouldn't be fired?

In addition to the best employees, there are other categories of subordinates with whom the contract can be terminated only upon liquidation of the enterprise:

1. A pregnant employee with whom an indefinite employment contract has been concluded.
2. Single mother with a child under 14 years old.
3. The only breadwinner in a family who has children under 14 years of age or a disabled child.
4. Chairman of the trade union.
5. A subordinate who went on vacation (until he returns).
6. Single father or other person caring for a child under 14 years of age.

All these groups of subordinates cannot be dismissed on the basis of a reduction in the number of staff.

Who has priority to retain a seat?

In addition to employees with whom the contract cannot be terminated at the initiative of the boss, there are groups of employees who can be fired, but only after the first wave of layoffs:

1. A disabled person from war or a worker who suffered from a man-made disaster.
2. An inventor, regardless of the time and place of invention.
3. A military mother, if she raised the child alone or her son (daughter) is currently serving in the army.
4. A former soldier of the Russian Army, if this is the first job after service.
5. An employee who cares for more than 2 dependents or is the sole breadwinner in the family
6. A military spouse, if he is employed in a government or military structure.
7. The employee is an orphan and under 23 years of age.
8. A person who improves his qualifications without interrupting his work in the organization.
9. A subordinate who suffered an occupational illness or injury from current management.

All these categories of employees have advantages if they retain their jobs. If the boss is faced with the question of whether to keep a highly qualified person or an employee with certain circumstances, then he must choose the second one.

Payments upon layoff

The redundant employee receives appropriate monetary compensation. In this case, the employee’s rights upon layoff remain equal - compensation must be given to all former subordinates.

What compensation are pensioners entitled to?

If a person works in an organization and is of advanced age, then he is entitled to the same payments as regular laid-off employees.

Compensations that pensioners will receive:

• severance pay;
• compensation upon layoff.

In addition to this, the person may be paid the average monthly salary for the 2nd and 3rd months from the date of leaving the enterprise if he does not find a new place.

Compensation for the manager and chief accountant

The director is entitled to the same compensation as ordinary employees. Only under Articles 181 and 279, upon dismissal, he is also entitled to a payment (analogous to severance pay) in the amount of at least 3 average salaries per month. However, the maximum value of this compensation has not been determined.

By law, any company that complies with legal standards must provide compensation to the director, even if monetary compensation is not provided for in the drafted employment contract.

In accordance with Article 178, the chief accountant is also entitled to all compensation given to subordinates. Only, unlike the director, the severance pay consists of 1 average monthly salary.

When reducing the number of employees of a company, it is important not only to comply with the dismissal procedure provided for by labor legislation, but also to correctly calculate the payments guaranteed in the general case. These are the following payments:

• - wages for the time actually worked in the month of dismissal;
• — compensation for unused vacation;
• — severance pay in the amount of average earnings;
• — average earnings for the period of employment.

Payment terms in case of staff reduction

Not all mandatory payments are made on the same day.

On the day of dismissal, the employee receives:

• -wages;
• - compensation for unused vacation;
• - severance pay for the first month, its payment does not depend on the employee’s further employment.

After the first month from the date of dismissal, the employer does not make any payments to the laid-off employee.

At the end of the second month, if the employee presents the employer with a work book without a record of employment and writes an application, he must be paid the average salary for the period of employment, including the severance pay paid on the day of dismissal.

If the former employee was employed in the middle of the second month, the benefit is calculated in proportion to the time during which the employee was not employed.

At the end of the third month, the average salary for the period of employment is paid, but only if (:

• - within two weeks from the date of termination of the employment contract, he contacted the employment service at his place of registration and was registered;
• - was not employed by the employment service within three months after dismissal.

If these conditions exist, after the end of the third month, the employment service will issue the employee with a corresponding document, upon presentation of which the employer will have to pay him the average salary for the period of employment (for the third month after dismissal).

Payment of average earnings for the period of employment is not wages, so it does not have to be paid within the time limits established by the company’s local regulations for the payment of wages. Payment of amounts can be made after 2 and 3 months on days agreed with the former employee.

The procedure for calculating payments in case of staff reduction.

Salary for the month of dismissal is calculated as usual without any restrictions. If an employee is entitled to additional payments and bonuses, they cannot be arbitrarily canceled because “he is quitting anyway.”

Compensation for unused vacation is calculated as the average earnings for vacation pay in accordance with the norms of Part 4 of Article / 139 of the Labor Code of the Russian Federation, as well as paragraphs. 10-12Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922.

Compensation is calculated for calendar days of vacation unused at the time of dismissal. When determining the number of days for which compensation is paid, the following must be kept in mind. An employee who has worked for the employer for more than a year and is dismissed in accordance with clause 2, part 1, 1, art. 81 of the Labor Code of the Russian Federation, compensation for the last working year is paid in full if during the specified period the length of service giving the right to annual basic paid leave was more than 5.5 months.

Severance pay is calculated in the amount of average monthly earnings, the amount of which is determined in accordance with Part 3 of Art. 139 Labor Code and clause 9 of the Regulations on average earnings.

In this case, the calculation is made based on the number of working days according to the work schedule of the dismissed employee in the month following the day of his dismissal.

If the employee has been established with a summarized recording of working hours, severance pay is paid for the number of working hours that the employee does not work due to dismissal. The number of hours is calculated based on the weekly working hours established for this category of workers (in general, 40 hours).

For the first month of maintaining average earnings for the period of employment, the employee receives severance pay on the day of dismissal. Therefore, payment for the second month of the employment period is calculated with severance pay included.

The calculation of severance pay involves not only cost indicators, but also time units: days, hours, months... An error in their determination can lead to overpayment or underpayment of severance pay.

To determine the boundaries of the period for which severance pay is paid, it does not matter what day it ends - a working day, a weekend or a holiday.

In this case, you need to set the period to determine the amount of severance pay, and not to perform any actions that cannot be performed on a non-working day.

Let us consider the procedure for settlements with employees using the example of one of them.

Thus, on the day of dismissal due to staff reduction, the employee was paid severance pay in the amount of 127,565.02 rubles, calculated based on the average daily earnings of 5,798.41 rubles. Let us remind you that severance pay and the average monthly salary maintained during the period of employment, which are paid in accordance with the Labor Code, are recognized as compensation payments. Therefore, personal income tax is not calculated or withheld from their amount.

On January 20, 2010, the employee was paid the amount of average earnings for the second month after dismissal in the amount of 86,976.15 rubles, on 02/25/2010 - for the third month in the amount of 133,363.43 rubles.

Five more dismissed employees of this organization faced a similar situation regarding the amount of payments. At the same time, the calculation of the average earnings of some of them did not include a bonus in the amount of 72,000 rubles, paid in December 2008 on the basis of an order on bonuses for the New Year.

The workers did not agree with the amount of severance pay and payments for the second month after dismissal and decided to recover the underpaid amounts through the court.

The following arguments were given in support of the claims.

The Labor Code of the Russian Federation stipulates that in case of layoffs, the employee is paid severance pay in the amount of SMZ. In this case, this indicator was calculated incorrectly. In accordance with Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 of the Regulation on the specifics of the procedure for calculating the average salary, all types of payments provided for by the employer’s remuneration system are included in the calculation, regardless of their sources. These include, but are not limited to, bonuses and rewards. According to Order No. 6-k dated December 20, 2008, employees were paid a bonus in the amount of 72,000 rubles. However, the employer did not take this amount into account when calculating the SMZ.

As for the payment for the second month after dismissal (Labor Code of the Russian Federation), the employer made a mistake here too. The presence of non-working holidays in a calendar month is not grounds for reducing wages (Article 112). Severance pay and subsequent payments are designed to maintain the official salary of the dismissed employee for the period of employment. Therefore, the number of holidays should not affect the amounts of these payments.

If it follows from the work record book presented by the employee that he was not employed during the entire second month, then the previous employer is obliged to pay him SMI in full. But payments to employees for the second month were 1/3 less than the severance pay and payments for the first month.

The employer, referring to the Decree of the Government of the Russian Federation dated December 24, 2007 No. 922, indicated that the calculation should be carried out based on the working days of the paid period. But this interpretation contradicts the principles laid down in the Labor Code of the Russian Federation and violates the guarantees of equality of rights and freedoms of citizens established by the Constitution of the Russian Federation. One of the basic principles in accordance with the comp. 2 Labor Code of the Russian Federation is equality of rights and opportunities for workers. According to Art. 3 of the Labor Code of the Russian Federation, no one can be limited in labor rights or receive any advantages based on circumstances not related to his business qualities.

The specific procedure for calculating payments during layoffs is not determined by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922. The employer took into account the phrase “based on the number of days actually worked during this period” and calculated each payment based on working days in the month. But at the same time, he did not take into account that the Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 does not talk about workers, but about days actually worked. And since the workers were fired in November, they could not have “actually worked days” in December, January, or February.

Having analyzed the above situation, we can conclude that the employee took the wrong path in solving this problem.

Firstly, according to the Decree of the Government of the Russian Federation dated December 24, 2007 No. 922, the Regulations when determining the SMZ for compensation payments use the average daily earnings, calculated by dividing the salary accrued for days worked in the billing period, including bonuses and remunerations, by the number worked in this period days. The exception is cases when the average earnings are determined for the purpose of paying for vacations and paying compensation for unused vacations, as well as the average earnings of employees for whom summarized working time recording is established.

In other words, when determining average earnings, in our case, to calculate compensation payments associated with layoffs, only working days are taken into account, and not calendar days (as for the purpose of paying for vacations and unused vacations). This division of the system for determining average earnings is due to the fact that vacations according to Art. 115 of the Labor Code of the Russian Federation is provided in calendar days, and wages are calculated based on the number of working days worked in a month. At the same time, according to Art. 112 of the Labor Code of the Russian Federation, the presence of non-working holidays in a calendar month is not a basis for reducing wages, i.e. The fewer working days in a month, the more expensive they are.

So, if an employee was going on vacation in January for several days, then the difference between the salary paid if he had not gone on vacation and the amount of compensation for the vacation and part of the salary for the days worked in January may not be in his favor.

Thus, the employer legitimately calculated the average earnings of employees based on working days in a month.

Now regarding the New Year bonus. According to Decree of the Government of the Russian Federation dated December 24, 2007 No. 922, the provisions of remuneration based on the results of work for the year, accrued for the calendar year preceding the event, are taken into account to determine the amount of average earnings, regardless of the time of their accrual. This is confirmed by judicial practice.

Taking into account the above, it can be argued that when calculating average earnings to determine the amount of both compensation for unused vacations and payments related to layoffs, the employer was obliged to take into account the New Year bonus.

The procedure for calculating average earnings for all cases provided for by the Labor Code of the Russian Federation is determined by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922. According to Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 of the Regulations, this indicator is calculated by multiplying the average daily earnings by the number of days (calendar, working) in the period, . At the same time, the indication of both calendar and working days is dictated by the fact that Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 provides for two methods for calculating average daily earnings.

Thus, to pay for vacations, the average daily earnings are determined by dividing the salary accrued for the billing period by 12 and by the average monthly number of calendar days (29.4). For all other cases, the average daily earnings are calculated by dividing the salary accrued for days worked in the billing period by the number of days worked (i.e., working days).

Based on the systemic interpretation of these norms, average earnings should be calculated by multiplying the average daily earnings by the number of days (calendar or working) on ​​the basis of which the average daily earnings were calculated.

Taking into account that the average daily earnings to determine the average monthly earnings for the period of employment paid in connection with the reduction are calculated on the basis of working days, then the average monthly earnings should be calculated by multiplying the average daily earnings by working days. Calculation based on calendar days is used only for payments related to vacations. The following circumstances also support this position.

Firstly, the statuses of a former employee receiving an average monthly salary due to a layoff and an employed person are different. In this regard, the approach of the legislator, applying different procedures of legal regulation to them, is justified. Secondly, it would be wrong to ignore the rights of the employer when considering this issue. Calculating average earnings based on the number of calendar days would impose additional burdens on him in the form of expenses not provided for by labor legislation. Payments calculated using this method would exceed the employee's salary during the period of his employment with the employer.

Thus, in the situation under consideration, the employer acted lawfully.

Unfortunately, the current legislation does not establish a clear procedure for calculating average earnings, which leads to uncertainty in the interpretation of the norms by Decree of the Government of the Russian Federation of December 24, 2007 No. 922 and the Labor Code of the Russian Federation and the emergence of similar issues in practice. The analysis of judicial practice also did not bring clarity, since it has not yet become the subject of consideration by the Supreme Court of the Russian Federation. In connection with the above, it would be wrong to call the position of the author of the problem erroneous, although we adhere to a different approach.

The decision to reduce the number of employees, as a rule, can be made by the employer for various reasons: due to the fact that the market demand for the company’s products or services provided has subsided, it is necessary to reduce production volumes, competition has increased, etc. Reduction of employees is also possible during liquidation organizations. The employer has the right to terminate the employment contract with the employee, however, observing a certain procedure for dismissal and the rights of the employee upon layoff, provided for by labor legislation.

The employer must remember that there are categories of employees who cannot be fired due to reduction in numbers (in this case, the exception is the liquidation of the company):

• Employees currently on vacation;
• Temporarily disabled workers;
• Pregnant women;
• Women whose children are less than 3 years old;
• Single mothers (as well as other citizens) who are raising a child under 14 years of age or a disabled child under 18 years of age;
• Minors (under 18 years of age).

Responsibilities of the employer when laying off workers

The main responsibilities of the employer when laying off an employee: personally warn each employee about the upcoming dismissal against signature within a period not exceeding two months before the date on which the employee is to be dismissed. If an employee refuses to receive a notice that dismissal is pending, and also to read it and sign it, it is worth drawing up an act that must be signed by several witnesses (at least two).

In addition, there is an important nuance that the employer needs to remember: dismissal due to workforce reduction can only be done if it is impossible to offer the employee another vacancy and transfer him to another job. All employees who are planned to be laid off must be offered a transfer before dismissal. This must be done in writing, in free form, by filling out two copies - one copy for the employee and the employer. This may be a job that matches the employee’s qualifications or a lower position, as well as a lower paid job. If the employee is ready to accept the offer and agrees to the transfer, the transfer must be completed in the usual manner. If the employer has nothing to offer (there are no vacancies), the employee should be informed about this in writing, by notification.

In addition, the employer must notify the employment service authorities in writing about the layoff of employees. In some constituent entities of the Russian Federation, a message form has been approved, and some employment centers have approved their own message forms. You can also do this in free form, indicating all the necessary information (positions that are planned to be eliminated, requirements for employee qualifications, wages, etc.)

If the organization has a trade union, then it also needs to be informed that it is planned to reduce the number of employees.

Employee rights upon layoff

After the statutory warning period about the planned reduction expires, the employer creates a dismissal order. Many people are interested in the question: what rights does an employee have to payments when being laid off from work in 2017?

On the last day, the employer makes a full settlement with the employee, including paying him the required severance pay and retaining his average earnings for the time until the employee is hired. In this case, exceptions are provided: if a decision is made to fire a part-time worker, then there is no need to maintain his average earnings while he is looking for work. A part-time worker is employed at his main place of work.

Thus, the employee has the right to receive redundancy payments in 2017:

• severance pay, which is counted as average earnings for the first month after losing a job;
• average earnings for the next (second) month after he was fired, if the employee did not manage to find a job.

In some cases, an employee can expect their average monthly earnings to continue for a full quarter from the day they were laid off. This is possible if the employment authority decides so, provided that within the prescribed period (2 weeks) the employee contacted the employment service and did not find a job.

There are many clauses under which an employer can legally fire an employee, and redundancy is the most popular. As of 2019, in most cases, this is the phrase that business owners hide behind when they are in a hurry to part with their next employee. The thing is that for the overwhelming majority of people these words sound like a sentence, and after such explanations the person gives up and voluntarily writes a statement of his own free will. But do not confuse layoffs with liquidation of an enterprise - in this case, the employer does not have the right to fire everyone indiscriminately, and you have the opportunity to defend your rights.

Legal side of the issue

So, what is the notorious retrenchment in 2019, after which many people regularly find themselves in the job center? The employer has the right to change the staffing table for its own purposes, and can completely legally fire an employee for this reason. Moreover, they can dissolve an entire department or department if they want to reduce this unit.

This is an ideal option for dismissing an employee - there are a minimum of restrictions, the procedure is not particularly complicated, and there is no need to invite various commissions, such as when determining qualifications and suitability for a position.

That is why in 2019, employers often resort to so-called “artificial” changes in staffing levels in order to get rid of unnecessary workers. This method is very good, but a legally savvy person will still be able to catch the unscrupulous owner of the enterprise by the hand, and it will not be so easy to fire him.

Who is prohibited from being laid off?

There is one important nuance - not every employee can be easily dismissed from work when staffing is reduced. Moreover, few people know these so-called categories of beneficiaries. And even if a person falls into this category, he may unknowingly take the dismissal for granted and immediately write a statement of his own free will in order to speed up everything and receive possible payments after leaving.

So, who does not have the right to be laid off in 2019 even after changing the staffing table?

• A person with a small child (under three years old);
• A person who provides for a large family. We are talking about families with three or more children, especially when the second parent does not work;
• A person providing for a child under 14 years of age (alone). If we are talking about disabled children, then the age increases to 18 years;
• A person who is temporarily unable to work (usually an employee on sick leave);
• A person on vacation;
• Pregnant women;
• Employees who are members of a trade union;
• Participants in a collective dispute.

As you can see, there are quite a few “non-retrenchable” categories of employees, and after you have read this list, you will be able to protect your rights and seek reinstatement if necessary.

Criteria for selecting candidates for layoffs

By excluding the above categories, we still get a considerable percentage of people whom the employer has the right to fire. And if you fall into this percentage, you should study who will be kept at work and by what criteria a candidate for layoff is selected. Imagine the situation: after the reforms, there is only one position left, for which two candidates are vying. Which one of them will be fired? Of course, no one has the right to fire a person simply out of personal hostility. According to current legislation, the owner of a business must give preference to employees with higher qualifications and performance in the workplace.

In reality, everything happens differently, and management does not always follow the letter of the law. There are always undercurrents that can influence the decision to lay off an employee.

But, according to the Labor Code as of 2019, preference is given to the following categories:

• Employees who have a family and at least two dependents;
• An employee who provides for his family alone;
• An employee with a disability group (they do not have the right to dismiss someone whose disability was caused by an accident at the given workplace);
• A combat veteran who has been disabled;
• Employees undergoing training in conjunction with work.

As you can see, in this case, not all employees are equal, and even if you are sufficiently savvy in legal terms, it will not always be possible to avoid dismissal. But even after dismissal, you can benefit from a certain benefit - the owner of the company does not have the right to simply throw you out the door; you are entitled to substantial payments for loss of your job. Of course, not all employers are eager to remember these payments, and if you don’t remind them of this, you can be left without money and without the possibility of reinstatement at work.

Cash compensation

According to current legislation, in 2019, after a layoff, a person is entitled to the following monetary compensation:

• One-time payment (usually the average monthly salary);
• Similar payments for two months while the former employee is looking for a new job. These payments are due only for the first two months.

You can only receive payments if you have not taken a new job. So you will need to present your work record book to your employer, thereby proving that you are still free. In addition, you will need to present your passport.

Of course, if you are unofficially employed and there is no record of a new job in your book, there is nothing stopping you from going and receiving these payments for 2 months. But if the deception somehow comes to light, you will be in trouble.

You can also receive payment for the third month of your search for a new job. But for this, a work book and a passport will not be enough; a decision from additional authorities will be needed - the employment service. As of 2019, you will need to get a decision from the employment service, and then the former boss will be forced to take care of the due payments.

Reinstatement to previous position

But what should those who were fired without reason do? What loopholes are there for those who have been laid off in violation of the provisions of the law? In this case, you need to pursue reinstatement, and this usually results in a lengthy and tedious process. It's not often that employers are willing to admit when they're wrong, but if you do everything right, you can assert your rights and get reinstated.

To achieve reinstatement in 2019, your redundancy must be declared illegal. To understand this issue, it is necessary to study the process of staff reduction itself. One of the basic rules is that the employee must be notified of the layoff two months in advance. The notice must be in writing and the employee must sign. If a person agrees to terminate cooperation, he can leave work even before the deadline. But if you intend to seek restoration, this option is not suitable for you.

So your first clue will be the notification procedure. If you were not notified, or you did not find out about everything in due time, this is a violation. In addition, if you were fired earlier than two months from the date of notification, you have every right to sue and demand reinstatement.

Dismissal despite priority

As already mentioned, an employer cannot lay off a person who falls into the above priority categories. If he did this, you should immediately go to court, and you will have every chance of winning the case. Once you win the case, it will only be a matter of time before you are restored to your previous job.

Refusal to provide other vacancies

In addition, you should study what other nuances distinguish staff reduction from the complete liquidation of an enterprise. Unlike liquidation, when changing the staffing table, the employer is obliged to offer available vacancies to everyone whom he intends to release from the employment contract. These may be similar vacancies at the same enterprise (if the person’s qualifications correspond to them), vacancies in other branches, etc. Such assistance in employment does not fall into the category of recommendations - in 2019, the employer is obliged to do this in accordance with the provisions of the Labor Code.

Therefore, if you were laid off without offering any alternative jobs, you have every reason to sue. This is a gross violation of the rules of dismissal during staff reductions, and you have the right to protest these actions in order to then demand reinstatement in your previous position.

Additional Information

In most cases, such litigation takes place with the participation of large enterprises that employ an in-house lawyer or are able to invite a qualified lawyer from outside. In litigation, being right is not the key to success; many other factors are important here:

• Timeliness of filing a claim;
• Having experience in similar matters;
• Awareness in the legal aspect, etc.

So it is advisable to enlist the help of an experienced lawyer or get some advice from a qualified legal adviser so that you fully assess the situation and feel more confident. History knows cases when it was possible to achieve reinstatement in the workplace alone, without the help of a lawyer, but in such cases it is better not to take risks.

No matter who you bring in for legal support or who you ask for advice, none of this will matter if you miss the deadline for filing a claim. You must respond within one month of being fired. The time should be counted from the moment of receipt of documents indicating dismissal.

The main thing in such matters is perseverance and determination. Many people simply give up after being unfairly fired, which is why it is believed that it is impossible to fight with employers. We live in a rule-of-law state, and in 2019 every citizen can defend their rights, especially after competent legal advice and with the support of specialists. Don't forget about this, and then you are doomed to success.