The procedure for payment of compensation in case of reduction. The actions of the employee when cutting. How to make an entry in the labor

The number of people who have lost their jobs due to layoffs is steadily increasing. Downsizing allows employers to lay off unsuitable employees and reduce personnel costs.

Downsizing is a legal way for an employer to terminate an employment contract unilaterally. However, he will need to pay monetary compensation. In addition, there are categories of employees whose dismissal is prohibited by law or difficult.

How is the layoff procedure for redundancy?

Dismissal to reduce staff in 2019 according to the Labor Code of the Russian Federation includes several steps:

The employer issues a layoff order (the document differs from a layoff order for layoffs) and signs it.
Employees who fall under the layoff are notified on an individual basis. The notification is made in writing. It contains information about the reason for the dismissal and its date. The employee reads the notice and signs it.
The employer offers each employee to be dismissed a different position that suits their work experience and qualifications. The list of available vacancies is indicated in the notice of dismissal. If you agree, the employee writes the word "agree" on the document. His refusal is also recorded - in this case, he quits. The laid off employee may change his mind and agree to the vacancy before the date of dismissal. If there are no vacancies, the manager draws up a corresponding document on their absence and signs it.
If a trade union functions at the enterprise, it is informed about the upcoming layoff no later than 2 months in advance. When a large number of employees are cut, the trade union is notified no later than 3 months in advance. The employment center is informed 2 months before redundancies.

Important: if there are minors who are laid off in the staff, the consent of the State Labor Inspectorate and the Commission for Minors and the Protection of Their Rights should be obtained (in accordance with Article 269 of the Labor Code of the Russian Federation)

The employer draws up an order to fire employees. The document contains the full name of everyone who fell under the reduction.

Advice: an employee can write to start looking for a new job as soon as possible.

Payments to reduce the number of employees under the Labor Code of the Russian Federation 2019

If the downsized employee refused to take advantage of the offered vacancies (or they were absent), it is required to pay him a salary, compensation for unused vacation and severance pay. Payments are made on the last day at the workplace, along with vacation compensation and wages.

Reduction of employees in the absence of monetary compensation is a violation of labor law.

Important: if the employer fails to comply with the layoff rules, the dismissed employees have the right to sue him - the subject of the claim will be illegal dismissal. If the court recognizes this fact, the employer will have to pay a fine, and the laid off employees will return to work.

Severance pay

The cash benefit in 2019 is due to laid-off employees from the employer for the fact that he deprived them of their jobs. Its size is equal to the average salary of an employee. If the employee was charged, the amount of the allowance was increased.

Reduction severance pay is paid for a maximum period of 2 months from the date of dismissal... The employee has the right to resign by agreement with the employer by concluding the appropriate document. In it, the employee can indicate any amount of severance pay, regardless of his average salary. Employers benefit from such an agreement, since they do not have to carry out the personnel procedure and prepare documents.

Compensation for unused vacation

If the employee who fell under the layoff has unused vacation days in the year in which the dismissal is made, the employer must compensate them in monetary terms. Cash compensation is subject to income tax. It is added to the calculation of the severance pay.

Full-time pay before redundancy

With a layoff in 2019, an employee receives a salary for the actual days of the month worked. Salary is the main part of monetary compensation: it is from it that other payments are calculated.

Advice: if the dismissed employee did not find another job in the second and third months, he can receive monetary compensation from the employer. You will need to show him a work book (which is proof of lack of work), a passport and a decision of the employment agency. The last document is needed to receive a cash payment for the third month.

Who cannot be dismissed due to staff reductions in accordance with the Labor Code of the Russian Federation?

An employment contract cannot be terminated in the following situations:

the employee has a child under 3 years of age;
the employee has a disabled child under the age of 18;
the employee has a large family (from three minor children);
the employee has a child under 3 years of age or a disabled child under 18 years of age, with the other parent being dependent on the spouse.

Important: when an employee who has been laid off is on vacation or is absent due to illness, his dismissal is postponed.

If an employee is a member of a trade union, then the employer has the right to reduce him in agreement with this organization. When laying off employees, the employer must keep employees who are distinguished by good labor productivity and are highly qualified. If the dismissed employee believes that he should have remained in the state, he has the right to defend his rights in court.

Of two workers whose professional level is about the same, the employer should choose one who:

one provides for his family;
has a disability resulting from an occupational injury or illness that occurred at this enterprise;
is a disabled person in military service;
aimed at training without exemption from production;
provides two or more dependents (for example, a disabled spouse and a minor child, two children under the age of 18).

Summing up

Downsizing requires an employer to comply with a legal procedure. Employees who have been laid off should be transferred on the day of dismissal all the necessary cash payments and compensations. There are vulnerable categories of workers who are protected by law from layoffs.

If the employer commits illegal actions (for example, in the absence of due payments or illegal dismissal), the employee has the right to go to court.

Reduction paymentsof the state are called upon to financially support the dismissed employee for the period of his employment. It is not very easy to independently figure out what exactly is due to an employee in such a situation, what the amount of payments is, and also how long they are provided. We will discuss these issues in more detail in the presented article.

What payments are provided upon dismissal to reduce staff?

In today's unstable economic situation, it is not uncommon for employers to cut their staff. It can be 1-2 employees or tens, hundreds of people (for example, when an organization is liquidated). The procedure and procedure for calculating payments are the same, regardless of the number of employees who have been laid off. The issues of providing guarantees and compensation to citizens who find themselves at work under a layoff are regulated by Art. 180 h. 3 of the Labor Code of the Russian Federation of 12.30.2001 N 197-FZ.

First of all, it is necessary to note the payments that are due to workers upon dismissal in the general manner; no one exempts the employer from these payments. They include:

salary not yet received in the last month of work;
compensation for vacations that the employee did not use for any reason.

IMPORTANT! The forthcoming reduction in the staff of the worker must the employer (an order is issued in writing for the enterprise, and all employees are introduced to him against signature) at least 2 months before dismissal. It is assumed that during this period of time, the employee who has been laid off will be able to find a new job for himself.

There are also compensation payments (regulated by Art. 178 Part 3 of the TKRF), which should help a citizen dismissed by layoff to provide for himself while he is looking for a new job. It:

severance pay (calculated by the average earnings of a worker);
payment in the amount of the average salary for the period until the citizen is employed, but not more than 2 months from the date of his reduction.

Terms of payments in case of redundancy of an employee

Let's consider in order when payments are made in case of reduction. On the day of the actual termination of the contract with the worker, the total amount of wages and compensation for unused leave are calculated. The payment procedure is saved here as in the case of a regular settlement upon dismissal of an employee.

In addition, on the day of reduction, the payment of severance pay is made, since the specified allowance is guaranteed and does not depend on whether the dismissed employee is employed by another employer or not.

Don't know your rights?

After 1 month from the day the worker is laid off, no payments are made. After two months have passed from the date of the worker's dismissal, if he has not found a job, at his written request, the employer makes a payment in the amount of the average salary of the dismissed. The compensation already paid (severance pay) is included in the payment of such compensation.

Downsizing severance pay

As mentioned above, the severance pay is calculated from the worker's salary (the average value is taken). It cannot be less than the average monthly salary. A collective or, for example, a regular employment contract with an employee may provide for a different amount - towards an increase in severance pay. Then the downsized employee will receive just such an allowance.

Important: payment of severance pay does not exempt the employer from paying bonuses and other incentive payments due to the employee, if they were provided for by the contract.

It should be borne in mind some special cases when payments for reductions are calculated differently, or not paid at all. So, when there is a calculation of the payment for the reduction of a worker who worked in seasonal work, the average wage is taken for a period of 2 weeks, and not 2 months (Article 296, Part 4 of the TKRF). Workers who have entered into a fixed-term employment contract for no more than 2 months do not receive severance pay (Article 292, Part 4 of the TKRF). Part-time employees who have been dismissed due to staff reductions (Article 287, part 4 of the TKRF) are entitled to severance pay on an equal basis with the rest, but are deprived of an allowance in the amount of the average salary for the period of placement with another employer (while maintaining the main place of work ).

The employer and employee can agree on an earlier termination date than 2 months. In this case, in addition to the main compensation payments, in relation to the employee who fell under the layoff, payments are made additionally. Additional compensation is calculated in proportion to the time that the employee did not finish working until the general deadline, also based on the average salary. Other stipulated benefits (severance and for the period of placement to another employer) are also paid.

Payment of average earnings for the period of placement to a new employer

Situations often arise when a worker has not found a new employer within 2 months after being laid off from a previous job. In this case, as mentioned earlier, he is entitled to an allowance in the amount of the average salary for the period of job search (but not more than 2 months), this guarantee is provided by Art. 178 h. 3 TKRF.

However, it happens that a new job was found in the middle of the month, how to calculate the payment? In this case, the payout in case of reduction is calculated in proportion to the time spent on searches. That is, if an employee found a job with a new employer on the 7th, then the average payment will be calculated for 6 days of the month during which he was still looking for work.

There is an exception, and the average monthly payment (by decision of the employment service) can be extended for another 1 month (i.e., for the 3rd), if the conditions are met:

the reduced employee was registered with the employment authorities within 2 weeks from the date of dismissal;
for 3 months the employment agencies did not find him a job.

So, we examined what payments are due when an employee is laid off, whether it be a reduction in the number of employees or staff, the liquidation of an enterprise. The problem of layoffs at work will not be so acute for you if you receive all the due payments in full.

Sometimes a situation occurs when an employee is laid off due to staff reductions. The company's management has the right to do this, however, it is necessary to know all the nuances in order to carry out the procedure according to the law, what compensation payments are due to such an employee and whom they cannot dismiss.

Initially, it is necessary to clarify that the employer is obliged to announce the dismissal to the employee due to the reduction of staff at the enterprise at least two calendar months before this date. Furthermore, the notice must be in writing and the employee is obliged to sign the acquaintance. If this is not done, he has the right to be reinstated in his position by law. After that, the company must offer the employee a new vacancy corresponding to his specialty, if any.

After this period expires, the employment relationship between the employer and the employee is terminated and payments are made due to the reduction of staff in the form of benefits, which is his average monthly salary. This allowance is paid until the employee is employed at a new place of work, but not more than two months from the date of dismissal.

Let's take a closer look at the correct procedure for formalizing the dismissal of an employee and what payments are due for reduction.

Dismissal procedure in 2019

This procedure is strictly regulated by law and must be carried out in a clearly consistent manner.

Initially, an order is drawn up for the enterprise on staff reduction. Then happens formal employee notice or employees to dismiss and offer them another vacancy (if any). After that, it is imperative to notify the trade union and the employment service. At the end of two months, it is necessary to dismiss the employee and pay him benefits.

The downsizing order has nothing to do with the dismissal order. This is the starting point after which the manager has the right to begin the process of reduction, notifying employees, etc. There is no approved form of such an order, however, it must indicate the date of the upcoming reduction, positions that are planned to be reduced and changes in the staffing table.

After the issuance of this order, it is necessary to notify the employee or employees whose positions fall under the reduction, but not less than two months in advance. It is drawn up in writing separately for each employee, in which they are required to sign for receipt. In the notification must have a date the alleged dismissal, its reason and the offer of other vacancies suitable for the employee according to his specialty, if any.

An important nuance - if at the time of notification of the employee about the reduction of staff there are no vacancies suitable for him, but these appear later up to the day of dismissal, the company must offer them to the employee. The employee has the right to agree to the proposed new position or refuse it.

If the company has a trade union, the employer must notify him of the reduction even those employees who are not members of it, at least two months before the time of dismissal. If, for any reason, there is a threat of mass layoffs, this period is increased to three months. The same rules exist for reporting planned redundancies to the employment service.

With the direct dismissal of an employee an entry is made in the work bookthat the employment contract was terminated due to the reduction of the organization's staff on the basis of clause 2, part 1 of article 81 of the labor code of the Russian Federation.

And now, in more detail, what payments are due to an employee in case of redundancy.

Due payments

According to the Labor Code of the Russian Federation (Article 178), an employee who has lost his position due to a reduction in staff at an enterprise is entitled to an allowance equal to his average monthly earnings. He must receive this benefit no later than six days from the date of dismissal. In addition, on the day of dismissal the employee is obliged to receive all debts in wages and compensation for unused vacation.

Within two weeks from the date of dismissal, the former employee has the right to apply to the employment service to look for a new job, and if he has not found a suitable vacancy, the company is obliged to pay him another compensation, also equal to the average monthly income. The decision to re-pay the benefit is made by the employment office. An employee has the right to receive such payments for no more than two months from the date of dismissal and only if he has not found a suitable vacancy with the help of the employment service or on his own.

Let us summarize what payments for the reduction of an employee are due to him and in what terms.

Full repayment of all debts on wages and unused leave no later than the day of dismissal.
Severance pay, which is equal to the average monthly income (no later than six days from the date of dismissal).
Average earnings for the period of employment within two months from the date of dismissal (only if you contact the employment service and there is no suitable vacancy).

There are cases of agreement between the parties when an employee can be dismissed before the expiration of two months after his notification and with his written consent. In such a situation, the employee additional monetary compensation is paid in the amount of average monthly earnings, calculated in proportion to the days remaining before dismissal. This compensation is an additional payment and does not replace other benefits provided by the Labor Code.

Sometimes there are special cases when an employee refuses to transfer to another position, and cannot hold the current one for the reason:

reinstatement to the position of an employee who held it earlier (for example, withdrawal from a decree or a court decision);
refusal to move to another city where the position is being transferred;
conscription of an employee into the army;
changing the employment contract and its terms;
recognition of an employee as incapable of work.

In this situation, he is also subject to a reduction and he is entitled to a two-week average earnings.

How to calculate severance pay in 2019?

The calculation of the average monthly salary for calculating the amount of severance pay required for payment is regulated by the Labor Code of the Russian Federation, namely, Article 139. In order to calculate it correctly, the following data must be clearly defined:

the start and end date of the month for which the benefit is paid;
the number of working days (hours for piecework payment) in a month for which compensation is due;
calculate the average daily earnings (or average hourly).

After receiving all these data, the average monthly earnings are calculated, which is the amount of the severance pay. He is subsequently the due compensation paid to the employee within two months in case he does not find a new job.

When calculating the average monthly earnings, a period of 12 months is taken that preceded the month the employee was fired. For calculation, only those amounts are taken that relate to wages (direct payment of the employee's labor) and do not take into account possible compensations that were during the calculation period, namely:

directly wages (rate);
additional payments for advanced qualifications of an employee;
additional payments for the quality, quantity or complexity of labor;
bonuses and other incentive payments;
compensation allowances and surcharges related directly to labor (associated with the performance of the employee of his labor obligations).

Compensations that are not included in the billing period include those that are not related to the work process. it sick leave payment and compensation for unused vacation, if such was accrued in the period taken for calculation.

The nuances of compensation for the period of employment

In order to get the average earnings due in the second month of employment, former employee must provide evidencethat he still hadn't been able to find a new job. A confirmation document in this situation will be a work book, from the records in which it will be seen whether he has already found a job or not.

This reduction payment is compensation to the former employee for the period of employment, respectively, as soon as he finds a new job under an employment contract, he loses his right to receive it. That's why average monthly earnings are always paid only at the end of each calendar month from the date of dismissal of the employee to reduce staff. Moreover, if he finds a job in the middle of this period, he is entitled to compensation payments for the days that he was in search of until the moment of registration at a new place of work.

The severance pay has nothing to do with this - it is compensation for the loss of a job and is paid even if the dismissed employee finds a job the next day.

Legislative aspects

When dismissing employees to reduce staff, there are a number of legislative subtleties and nuances that must be known and followed so that no claims can arise against the employer.

According to article 261 of the Labor Code of the Russian Federation a woman cannot be cutexpecting a baby. Even if she works on the basis of a fixed-term employment contract, after providing a medical certificate, the employer is obliged to renew her contract. The only legal option for reduction in this case is if she held the position of another employee due to his temporary absence, and there is no way to transfer her to another vacancy.

Also, they do not have the right to dismiss a woman with children under three years of age, a single mother raising a child up to fourteen years old or a disabled child up to eighteen years old in connection with redundancy.

Teachers and other workers in the field of education do not have the right to be laid off before the end of the school year.

When reducing staff, if there is a question of dismissal between several employees, there is a moment of pre-emptive right. First of all, it is possessed by employees with higher qualifications or labor productivity. If there are no such indicators or they are equal, then the following have the advantage of staying in office:

family workers who are the sole breadwinners.
family workers with two or more dependents.
workers who have received an occupational disease or work injury at this place of work.
employees who improve their qualifications on the job without interrupting work.

It is also worth remembering that compensation payments for redundancy are not due to a part-time employee, since he has a main job.

If an employee was laid off after having worked in the organization for less than six months, he are still obliged to charge compensation for unused vacation.

By agreement of the parties, the employer can dismiss the employee without notice two months in advance, retaining all compensation payments, but only with the written consent of the latter. If such an agreement is not reached between the parties, the reduction procedure takes place as usual.

Going to court

If the employer violates the rights of the dismissed employee during the layoff, the latter always has the right to go to court. The deadline for filing a claim is thirty calendar days from the date of dismissal (receipt of a copy of the order or work book).

Unfortunately, the facts when the employer, wishing to save money and taking advantage of the employee's ignorance of the labor code, violates the law and forces the employee to write a statement of his own free will, are quite common. therefore you need to know your rights and not be afraid to defend them in court order. If the court finds such a dismissal illegal, the employer will be obliged to reissue the documents and pay all the compensations due, or it is possible to reinstate in the post with the payment of the forced absence.

Among other ways to terminate an employment contract, redundancy dismissal stands out. The fact is that among other types of dismissal provided for by the Labor Code (Labor Code of the Russian Federation), this is the most time-consuming, but at the same time, perhaps the most guaranteeing the observance of the employee's rights.

Tom, what an employee and employer need to know when downsizing, and I dedicated this article.

The dismissal of an employee for staff reduction in the Labor Code of the Russian Federation is included in Article 81, which considers all cases when an employment contract is terminated by the employer.

○ Dismissal due to staff reduction.

✔ TC on dismissal due to staff reduction.

Article 81 of the Labor Code of the Russian Federation combines both cases of dismissal for absenteeism, violation of discipline or labor protection measures, and cases when an employee leaves, although he is not guilty of anything (these include, in addition to downsizing, the liquidation of an organization, for managers, their deputies and chief accountants - change of the owner of the organization).

The Labor Code of the Russian Federation does not decipher what is the difference between downsizing and downsizing. In practice, the difference is also insignificant and consists only in the fact that with a reduction in the number of employees, the position in the staffing table remains, but there will already be fewer employees (for example, instead of three managers in the department, one remains).

With a reduction in staff, a specific position is generally excluded from the schedule (for example, the position of a personnel officer is abolished at an enterprise, and his duties are transferred to an accountant).

✔ Who can and cannot be reduced?

Despite the fact that the reduction in the number or staff of employees depends entirely on the initiative of the company's management, the law provides for certain benefits for a number of categories of employees.

I'll tell you more about them below. In the meantime, I will say that when reducing, there is a rule about predominantly leaving the workplace... Art. 179 of the Labor Code of the Russian Federation stipulates that first of all workers with lower qualifications and lower labor productivity should be dismissed in case of redundancy.

In practice, this usually means that reduce primarily employees with less work experienceas seniority usually implies experience.

When reducing, the results of qualifying exams, the employee's education (in the same position, an employee with a higher education will have an advantage over a colleague with a secondary specialized), as well as the indicators achieved by each of the employees in the previous period should be taken into account.

The Labor Code of the Russian Federation and other acts also require that the following employees enjoy the advantage when leaving work:

Having disabled children.
Single mothers and fathers.
The only breadwinners.
Suffering from an injury or an occupational disease received in this enterprise.
War invalids.
Heroes of the USSR and the Russian Federation, holders of the Order of Glory.
Victims of the Chernobyl disaster and the Semipalatinsk trials.
Improving qualifications in the direction of the organization, combining training with work.
Employees-inventors (oddly enough, the USSR Law "On Inventions in the USSR" in this part is still in effect).

In addition, some employees cannot be dismissed by their employer at all except at their own request, agreement, or for misconduct.

With regard to the reduction, in addition to the usual benefit recipients, members of the management of trade unions not lower than the workshop level cannot be dismissed.

It is prohibited to dismiss the elected representatives of the collective of employees who participate in the resolution of disputes with the employer.

✔ The main reasons for the reduction.

The law does not directly establish in what cases the employer has the right to reduce the number or staff of employees.

The Constitutional Court of the Russian Federation, in its ruling No. 867-О-О of 18.12.2007, established that this is the employer's right in cases where it is required by economic necessity.

However, in turn, the Supreme Court of the Russian Federation, by ruling No. 19-B07-34 of 03.12.2007, introduced a rule that in the event of a dispute, the court has the right to verify the necessity and justification of the reduction.

Thus, an employer wishing to take such measures needs to order on the reduction, indicate the reasons for the dismissal.

As a rule, the reasons forcing to lay off workers are:

Low profit of the enterprise and inability to pay salaries to the previous staff.
Low efficiency of the previous staff and the presence of posts that are not needed.
Changes in the technology or organization of production, in which some of the workers are unclaimed.

✔ The necessary conditions.

Dismissals of employees for redundancy are possible provided that the employer meets a number of conditions

Full and strict adherence to the reduction procedure prescribed by law.
If the enterprise previously concluded collective agreements with employees, or the employment contracts of the dismissed contain additional guarantees upon dismissal, they must also be respected.
Justification of dismissal.
As already mentioned, in the event of a dispute, the court has the right to check to what extent the dismissal was justified economically and organizationally.
Employment service notification.
Separately, this point is worth highlighting, since some employers manage to completely forget about this requirement, as a result of which they are then forced to pay fines and pay employees for forced absenteeism.

✔ The procedure, procedure and rules for dismissal to reduce.

Reduction of staff for any enterprise is a rather complicated procedure, and a violation at any of its stages is fraught with a fine or legal proceedings for the employer.

Dismissal should be made in the following order:

The management of the enterprise issues an order on the planned reduction at least two months before the employee is to be fired (Article 180 of the Labor Code of the Russian Federation). Each of the employees to be dismissed is warned personally about the expected reduction and reads the text of the order against signature. However, one should not confuse the order to lay off the staff with the order to dismiss a specific employee - such orders are issued much later, when the deadline for dismissal is due.
Employees who are subject to layoff, the management of the company is obliged to offer any other position that meets the qualifications of the dismissed employee. It should be remembered that the offer of another job is not a one-time action: the employer is obliged to notify the dismissed about the vacancies that open at the enterprise up to the very termination of the employment contract. The employee must either accept the offer and continue working in another position, or refuse - and the refusal must also be recorded in writing, with the date and signature of the employee.
The employer notifies the trade union if there is one in the enterprise. The notice period is the same as for workers, but in case a mass layoff is planned, the union should be warned not two, but three months in advance. This rule is established by the definition of the Constitutional Court of the Russian Federation. In turn, the trade union must express its opinion on the dismissal within seven days. If the trade union does not agree to lay off workers, then according to the law, positions must be agreed within three days. If, in this case, no agreement was reached, the employer has the right to dismiss the workers, but the trade union can appeal this decision to the Federal Labor Inspectorate (Rostrudinspektsiya). The inspectorate, in turn, may recognize the dismissal as illegal and demand the reinstatement of the dismissed at the previous place of work with payment compensationand for forced absenteeism. The decision of the Federal Labor Inspectorate can be appealed by the employer in court.
In addition to the trade union, the employer also warns the employment service within the same timeframe (two, with a mass dismissal - three months).
If within two months the employee has not agreed to any of the vacancies offered to him, the employer issues an order for dismissal to reduce staff. The order is usually issued according to the unified form T-8. In this case, the employee is issued a work book, a salary is paid for the days worked in the last month of work and compensation for unused vacation days (depending on the time worked since the last vacation). The most important thing is for the employee in accordance with Art. 178 of the Labor Code of the Russian Federation, severance pay is paid. Its size is not less than the average monthly salary, but according to an employment contract or collective agreement with employees, the allowance can be increased.
If an employee, after dismissal, registered at the labor exchange, but was not employed, the former enterprise continues to pay him the average monthly salary for two months (but deducting the severance pay already received).
If the employee agrees, he can resign on a reduction and before the expiration of the two-month period. In this case, the employer pays him, in addition to the severance pay, also the salary for the unworked time between the day when he actually quit and when he should have quit according to the employer's plan. In addition, an employment contract or collective agreement may provide for other redundancy benefits.

The order on the planned dismissal for reduction - not less than two months in advance;
Warning of the employment service and the trade union organization (if there is one at the enterprise) - not less than two months, in case of mass dismissal - not less than three.
The deadline for payment of wages for the part of the month worked, compensation for unused vacation and severance pay is no later than the day of dismissal.
The terms of payment of the average salary for an employee registered with the employment service, but not employed, is up to two months.

Violation of these deadlines can lead to a fine for individual entrepreneurs - up to 50 minimum wages, for legal entities - up to 500 minimum wages.

In a difficult economic situation, sometimes downsizing becomes the only possible way to keep the company. Often, however, downsizing is a way to save resources. This procedure is spelled out in great detail in the Labor Code and has a well-thought-out sequence.

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Reduction of employees under the Labor Code

Downsizing is a procedure that provides for compliance with a number of conditions in the Labor Code. Failure by the employer to comply with one of them may result in the employee's reinstatement in the workplace, with the payment of earnings for the entire period of forced absenteeism, which will be considered the period from the date of dismissal to the date of recovery. Labor disputes are often resolved in court and the court, as a rule, takes the side of the employee.

The rules for dismissal in accordance with the Labor Law should be known to both employers and employees.

Dismissal on reduction of staff falls within the scope of Article 71 and must be carried out in two cases:

With the liquidation of the post as a whole.
With the reduction of staff for this position.

In any enterprise, large or small, there are positions that are occupied by only one employee, for example, the head of the hot stacking shop. If such a position is reduced, then the employee who occupies it is fired.

In large enterprises, there are positions that are occupied by several (sometimes several dozen) people, for example, a commuter bus driver. Here, not all positions can be cut, but only the number of employees can be limited, for example, “to reduce the number of employees from 25 to 15”. Then only part of the persons holding this position will be reduced, and a number of other provisions of the Labor Code will come into force here.

The dismissal of workers is also carried out in the event of a reorganization of production. For example, when installing new equipment that eliminates jobs.

But in any case, staff reduction is carried out in accordance with Art. 178. And it is necessarily preceded by the approval of a new staffing table, which becomes the basis for reducing and terminating an employment contract with a specific person.

When an enterprise or individual entrepreneur is liquidated, employees are also dismissed (part 2 of article 140). But in this case, all employees are dismissed, including those categories that do not fall under the layoff, for example, pregnant women who are caring for a baby, etc.

Who are not allowed to cut

After the approval of the new staffing table, where there are a number of provisions providing for the reduction of staff, the question of the reduction of real jobs will arise. So, it will be considered which of the employees needs to be fired and who should be left. Several categories have security guarantees that prohibit their dismissal.

So, Art. 261 of the Labor Code of the Russian Federation provides for special rights of the following categories:

Pregnant women.
Mothers with children under 3 years old.
Single mothers with children under 14 years of age.
Mothers raising children with disabilities under the age of 18.
Persons raising children without a mother, up to 14 years of age.

According to Art. 269, you cannot fire an employee who is under 18 years old.

You cannot fire an employee who is on a sheet of temporary disability or on vacation.

Important!Dismissal of these categories of workers is possible only with the complete liquidation of the organization. If the position is liquidated, the person must be offered another vacant position. Moreover, it does not necessarily have to be equivalent in qualifications, wages.

Some other categories of workers also enjoy the right of advantage with equal indicators and qualifications (Article 179):

If this employee is the only employee in the family with income.
People with disabilities who have received injuries or occupational diseases at this enterprise.
People with disabilities of the Second World War or disabled people in combat to defend the Fatherland.
Employees who undergo training (improve their qualifications) in the direction of the organization on the job.
Workers with two or more dependents.

In what cases the dismissal will be illegal

From all of the above, it should be concluded that a number of persons of several categories cannot be dismissed due to staff reductions, they should be offered another job, they can be dismissed only then by agreement of the parties or of their own free will. Here dismissal due to staff reductions will be illegal.

Another important point is the decision of some managers to propose dismissal by workers not by staff reduction, but at their own request. This is usually dictated by the desire to save money on payments required by the category falling under the reduction. But not allowed to persons leaving of their own accord. Upon dismissal of your own free will, you will not be able to appeal against the illegality.

The dismissal of a person on sick leave or on vacation will be illegal. The procedure for dismissing workers to reduce staff has a clearly defined mechanism that provides for a number of actions.

If at least one of them is violated, the dismissal may be considered illegal. It:

Drawing up and approval of a new staffing table.
Notification of employees about staff reduction (posting an order) 3–2 months before the expected date of staff reduction.
Notification of each employee individually (in writing) at least 2 months prior to the proposed dismissal.
Issuance of a dismissal order.
Full settlement with the employee on the day of dismissal.

Here, for example, dismissal without written notification of each individual may entail the illegality of dismissal of a specific employee (he was not properly notified).

In practice, the absence of one of the listed management steps can be considered as illegal dismissal.

Reasons and grounds for reducing the rate of an employee of the organization

It should be noted that a reduction in the size of the wage rate for an employee is illegal due to the difficult financial situation of the employer. Therefore, it is not entirely correct to consider it as one of the alternatives to staff cuts. Moreover, it is prohibited by law to reduce employee rates due to the difficult financial situation of the organization (enterprise).

Reductions in tariff rates are carried out in accordance with Art. 74 of the Labor Code of the Russian Federation and carrying out such is possible:

If there are changes in technology and / or production technology.
In case of improvement of workplaces (basis - certification).
With a structural reorganization.
Other reasons put forward by the employer (but they can be challenged in court).

Provided that these changes entailed a decrease in the actual amount of labor to perform its work function. At the same time, it is impossible to change the labor function itself.

For example, equipment (car) was purchased, which now performs part of the physical work of a loader worker for him. In this regard, his rate was cut by 30%. Or if, as a result of structural reorganization, the employee no longer needs to perform one of the actions he is carrying out, for example, when packing goods, there is no need to transfer wrapping paper, which is 25% of the work performed.

At the same time, such a reduction in the tariff salary should be preceded by a number of actions on the part of the enterprise:

Issuance of an order on the need and implementation of changes, with their justification. Carrying out other activities necessary to make changes.
Primary trade union notices.
Notification of the employee about upcoming changes in working conditions 2 months in advance (in writing).
Conclusion of an additional labor agreement, which will reflect changes in the size of the tariff rate.

In case of disagreement with the reduction of the tariff rate, the employee may be offered another job at the same enterprise, or he may be fired:

According to clause 2, part 1 of Art. 81 downsizing. Here he will be paid all due compensation.
According to clause 7.h. 1 tbsp. 77 as refusing to work under the new conditions. In this case, payments fall under Part 3 of Art. 178.

If a person was notified of the changes and started to work after the expiration of 2 months, but an additional agreement was not signed, then this is interpreted as an actual agreement with the reduction of the tariff rate.

The procedure and rules for the reduction of an employee at the enterprise

Reduction of staff concerns a specific person only when he was informed under signature that he would be dismissed due to reduction of staff. The employee must be notified at least 2 months before the expected date of dismissal. If, for any reason, he refuses to sign the order for acquaintance, then an act is drawn up, which indicates his notification.

After notification of the reduction of the position, the management, if there are vacancies at the enterprise, must offer them to the dismissed person. In addition, if there are vacancies in another location, they may also be offered.

If during the period of these two months a person manages to find another job with the help of a written application, he can notify the management and receive a calculation earlier. At the same time, he will be paid compensation in the amount of the average monthly earnings.

On the day of dismissal, the employee is issued a work book with all the entries made in it, as well as a certificate of income for the last 2 years, all other certificates that the discharged person requires.

A full calculation is mandatory. In some cases, a dispute arises over payments. If this happens, then only the uncontested amount is paid on the day of dismissal.

Important! The term of 2 months for notification of redundancy is established by law for permanent employees. Temporary employees must be notified at least 2 weeks in advance. For those who are hired for a period of up to 2 months, this time is 3 days.

The procedure for calculating payments

Funds must be credited and issued to the dismissed person on the day of his dismissal. The day of dismissal is the day of full settlement with the employee.

The only exceptions are cases when the employee disputes the amount of payments. Then on the day of dismissal he must be paid an uncontested amount.

The amounts of these payments are usually significant, often the employer asks employees to resign of their own free will or by agreement of the parties. Under these formulations, job search payments and additional benefits are not provided.

The amount of cash payments will depend on several factors:

Forms of employment: permanent or temporary.
The size of the salary of the dismissed person. In fact, all states are calculated from the average salary of the dismissed.
The number of unpaid other payments: vacation, sick leave, business trip.

Terms and size of accrual of funds

Upon dismissal, a full settlement is carried out with the employee, while he will not only be given the requested certificates, a work book and the employment contract will be terminated, but also a full cash settlement will be made. The amount issued to the dismissed person should include all payments due to him. Among them will be:

The amount of severance pay in the amount of the average salary for 1 month.
The amount of average earnings paid during the search for a job (for 2 months, sometimes 3).
The amount of additional compensation (2 more average monthly salaries).
Compensation in cash for all unused vacations.
Payments for all unpaid sick leave and travel allowances.
Salary for hours worked (the day of settlement is also paid).

Important! If there was paid but unused money, the money will not be returned.

For temporary workers, the amounts are calculated in two-week amounts.

Rights and guarantees of workers in case of layoff

The legislator has provided some rights and guarantees for workers who are subject to redundancy. They are mainly aimed at more systematic dismissal, in which there is a period that should allow the discharged person to adapt to the new conditions and find a job.

A number of rights and guarantees are provided for in Article 81. Here the employer undertakes to offer the employee who falls under the layoff another vacant position at the enterprise (if any). If the company has branches or divisions, including in other cities, then the employee can be offered a job there.

An employee can use another right (Article 179) if he managed to find a job before the expiration of the 2-month period. Here, by agreement with the employer and on the basis of a written application, he can be dismissed earlier, but he is paid an allowance in the amount of the average monthly earnings.

In addition, with this type of dismissal, persons are entitled to severance pay in the amount of two average monthly salaries and unemployment assistance from the employment service for 2 months (Article 178).

The rights of the dismissed include the obligation of the employer to notify the employment service about the planned activities 3 months in advance. It is believed that this will allow dismissed persons to find work more quickly.

When considering the advantages according to Art. 179, then they act only when considering the position held. If the employee applies for another position, then here they may not be taken into account.
Temporary incapacity for work is a reason that does not allow dismissing an employee under Art. 178. But dismissal after the end of the sick leave cannot be canceled. As a rule, in such cases, it will be possible to work a little longer, but not to avoid dismissal.
Sometimes it becomes necessary to get a certificate from the previous place of work. According to the legislation, it can be obtained both upon dismissal and after it. At the same time, there are no deadlines that would limit the receipt of this or that certificate. But the employer must provide it within three days after the application. In this case, the document must contain all the necessary details and be certified.

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