Reducing the staff: typical mistakes of employers. Reduction of an employee - procedure and rules for downsizing Reduction of employees under the Labor Code of the Russian Federation

Practicing lawyer and economist, director of LLC "KPTs" Dialogue Consulting ", member of the National Union of Personnel Officers of Russia, expert-reviewer of SPS" ConsultantPlus ".

Seminars M.V. Cherenkova were first of all recommended to heads of personnel (personnel) management departments, managers, specialists of structural units involved in the development of collective agreements, local regulations, organizational and administrative documents, remuneration systems, in the resolution of labor disputes.

Education

1986-1991 - Novosibirsk Institute of Soviet Cooperative Trade; specialty: "Trade Economics";
1992-1993 - International School of Managers (Moscow); specialty: "Foreign economic activity";
1997-2002 - Law Institute of Krasnoyarsk State University (currently - Law Institute of Siberian Federal University) with honors; specialty: "Jurisprudence".

The most massive seminar of the lecturer was held in Novosibirsk in April last year (298 people) on the topic: "Recent changes in the labor legislation of the Russian Federation: a review of innovations, analysis of practice."

Most Popular Workshop 2015: "An Effective Contract: Key Points of the Transition Period" -organizers: JSC "Quadro Plus" (Kemerovo), LLC "Center for corporate training" (Kemerovo), UMC "Union of Industrialists" (Barnaul), ANO DPO "SCPR" (Krasnoyarsk), LLC "KPTs" Dialogue Consulting "(Krasnoyarsk).

For 15 years of work in the field of labor law M.V. Cherenkova prepared 35 training programs, attended by more than 10,000 people in different cities of the country (Krasnoyarsk, Lesosibirsk, Minusinsk, Sharypovo, Kansk, Achinsk, Arkhangelsk, Velsk, Severodvinsk, Vologda, Perm, Irkutsk, St. Petersburg, Novosibirsk, Kemerovo, Novokuznetsk , Barnaul, etc.).

In 2014, the first book by M.V. Cherenkova "Labor Book: Complex Issues of Management" (publishing house "Mysl", Novosibirsk, circulation 5000 copies).

Currently, work continues on the second book with the working title: "Personnel documents of the organization: we draw up correctly".

1. How to document the reduction in the number or staff of workers.

2. What payments are due to employees in case of redundancy.

3. What are the features of the reduction of employees of an individual entrepreneur.

The employer does not have many legal reasons to fire employees on its own initiative. One of such grounds is dismissal due to a reduction in the number or staff of employees (clause 2, part 1 of article 81 of the Labor Code of the Russian Federation). This measure, the reduction of workers, can be either planned (for example, during the automation of production, when certain positions are simply not needed - their functions are performed by machines), and forced (for example, in a difficult economic situation, when it is necessary to cut costs, including by reducing the number of employees and labor costs). However, in any case, regardless of the reasons, the layoff of workers requires careful preparation from the employer, and first of all, in terms of documentation. Even the most "insignificant", at first glance, violation in the procedure and deadlines for processing documents can serve as a reason for serious claims from the regulatory authorities in the field of employment, up to legal proceedings and the recognition of the dismissal of workers as illegal. In order for the staff reduction to proceed systematically and in full compliance with the law, I suggest you read this article to the end.

First of all, let's decide on the wording that is given in the Labor Code of the Russian Federation: "reduction of the number or staff of employees of an organization, an individual entrepreneur" (clause 2, part 1, article 81 of the Labor Code of the Russian Federation). In fact, it includes two reasons for dismissing employees:

Downsizing- in this case, the number of employees holding certain positions decreases, but the positions themselves remain.
Downsizing - in this case, it is the positions that are reduced, and, accordingly, all employees holding these positions are subject to dismissal.

It should be noted that both with a reduction in the number and with a reduction in the number of employees, the staffing table changes. For example, if the number of drivers is reduced from five to two employees, the very position of “driver” will remain in the staffing table, but the number of staffing units will become not five, but two. With the reduction of staff, the position of "driver" is completely removed from the staffing table.

Procedure for reducing the number or staff of employees

The layoff of workers requires the employer to follow a clear sequence of actions. Particular attention should be paid to the paperwork, as well as the timing of interaction with employees and regulatory authorities. In order not to miss anything, we will consider the procedure for reducing workers in steps.

1. Making a decision to reduce the number or staff of employees

The very first step that must be taken by the employer is the adoption of a decision on the forthcoming reduction of employees. This decision is drawn up by order of the authorized body of the employer. In an organization, as a rule, such powers are vested in the head, unless otherwise specified in the charter. If the employer is an individual entrepreneur, then the order for the reduction is signed by the entrepreneur himself.

The reduction order usually contains the following information:

the reasons that led to the need for reduction;
positions and number of staff positions to be reduced;
further reduction measures, terms of their implementation and responsible persons.

2. Approval of the new staffing table

As mentioned earlier, the reduction of employees is always associated with a change in the staffing table. Therefore, in accordance with the order to reduce employees, it is necessary to prepare a new staffing table, as well as an order to approve a new staffing table indicating the date from which the changes begin to take effect (taking into account the two-month notice period for workers).

3. Determination of employees who have the priority right to stay at work

The reduction in the number of employees implies the dismissal of not all employees holding a certain position, but some. At the same time, the employer does not have the right to determine these “lucky ones” at its own discretion - it is necessary to be guided by the requirements of the Labor Code (Art. 179 of the Labor Code of the Russian Federation). The sequence of employees who have the priority right to remain at work is determined as follows:

Employees with the highest productivity and qualifications.
With equal productivity and qualifications, employees have an advantage:

who are fully supported by two or more family members;
in whose family there are no other workers with independent earnings;
who have received a work injury or occupational disease while working for this employer;
who are invalids of the Second World War and invalids of military operations to defend the Fatherland;
undergoing advanced training in the direction of the employer without interruption from work;
other categories of employees established by the collective agreement.

! Note: to reduce the number and staff of employees cannot be fired (part 4 of article 261 of the Labor Code of the Russian Federation):

pregnant employee;
an employee with a child under the age of three;
single mother raising a disabled child under the age of 18 or a young child (under the age of 14);
an employee raising these children without a mother.

As a rule, to form a list of employees who are to be dismissed in the last turn (or cannot be dismissed according to the law), a commission is created, the composition of which can be approved by an order to reduce. The final list is approved by the decision (protocol) of the commission and is the basis for dismissing some employees and leaving others at work.

4. Notifying employees about the upcoming layoff

After the composition of specific employees to be laid off has been determined, the employer is obliged to notify each of them about the upcoming dismissal in writing against signature. The notification is drawn up in any form, and it is better in two copies: one for the employee, and the other for the employer (as confirmation of the fulfillment of the specified requirement).

! Note: The employer is obliged to notify employees of the upcoming dismissal due to a reduction in the number or staff in the following terms:

at least two months before dismissal - in general (with part 2 of article 180 of the Labor Code of the Russian Federation);
not less than seven calendar days - seasonal workers (part 2 of article 296 of the Labor Code of the Russian Federation);
not less than three calendar days in advance - for employees who have entered into an employment contract for up to two months (Article 292 of the Labor Code of the Russian Federation).

The specified terms are established for employers who are organizations - this follows from a literal reading of the wording of the Labor Code of the Russian Federation. Thus, an employer who is an individual entrepreneur is not obliged to comply with the deadlines for notifying employees about the upcoming layoff, unless such deadlines are provided for in labor contracts (Definition of the Constitutional Court of the Russian Federation of 03.20.2014 No. 476-O, Cassation ruling of the Khabarovsk Regional Court of 09.07. 2010 in case No. 33-4591).

An employee who has received a notification has the right not to wait for the deadline specified in it, but to agree to early termination of the employment contract. Consent in this case must be submitted in writing. In this case, the employee is paid an average earnings calculated in proportion to the time remaining before the expiration of the notice of dismissal. In addition, the employee is entitled to all other payments, which will be discussed below.

5. Notification of employees about vacancies

Even sending the employee a notice of the upcoming layoff does not guarantee his dismissal: the Labor Code obliges the employer to offer employees to be laid off other available vacancies, as well as work that corresponds to the qualifications of the employee (part 3 of article 81 of the Labor Code of the Russian Federation). The vacancy proposal can be included in the text of the notice of the reduction, or it can be drawn up in a separate document, with which the employee is introduced to the signature. The refusal of the employee from the proposed job or vacancy must be made in writing.

6. Notification of the employment service

The employer is obliged to notify the employment service agency in writing about the forthcoming reduction in the number or staff of employees (clause 2 of article 25 of the Law of the Russian Federation of 19.04.1991 No. 1032-1 "On employment of the population in the Russian Federation"). The notice period is as follows:

for organizations: not less than two months in general, and in case of mass layoffs, not less than three months;
for individual entrepreneurs: at least two weeks in advance.

! Note: Regional employment centers may provide their own forms for submitting information about the released workers.

7. Notification to the trade union organization (if any)

In accordance with Art. 82 of the Labor Code of the Russian Federation, the employer must inform the elected body of the primary trade union organization in writing about the forthcoming reduction in the number and staff of workers. The deadlines are the same as for the notification of the employment service: 2 months and 3 months (with a massive reduction). If there are trade union members among the workers to be laid off, then the decision to dismiss them must be agreed with the trade union body in the manner prescribed by Art. 373 of the Labor Code of the Russian Federation.

The procedure for dismissing employees to lay off

Dismissal of workers in connection with layoffs occurs in the general procedure established by Art. 84.1 of the Labor Code of the Russian Federation.

1. Issuance of a dismissal order

The order is drawn up according to the unified form No. T-8. The column "Grounds" indicates the details of the order to reduce the number or staff of employees. If the employee was dismissed ahead of schedule by agreement, then this column also reflects the details of such an agreement (employee statements). The order indicates the last day of work.

2. Drawing up a note-calculation

3. Registration of a personal card, making an entry in the work book

An entry is made in the employee's personal card and work book that the employment contract was terminated due to a reduction in the number or staff of employees on the grounds of clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The entry in the work book is certified by the signature of the employee responsible for keeping work books, the seal of the employer and the signature of the dismissed employee (clause 35 of the Decree of the Government of the Russian Federation of 04.16.2003 No. 225 "On work books"). The work book is issued to the employee on the day of termination of the employment contract. Upon receipt of the work book, the employee must sign a personal card.

The wording of the entry in the work book upon dismissal due to the reduction in the number of employees looks like this: The employment contract was terminated due to the reduction in the number of employees of the organization, paragraph 2 of part one of article 81 of the Labor Code of the Russian Federation

Payments to employees upon dismissal due to layoffs

In addition to regular layoff benefits, such as pre-layoff wages (including bonuses, bonuses and other benefits) and compensation for unused leave, employees who are laid off are entitled to additional benefits. In accordance with the Labor Code of the Russian Federation, upon dismissal due to a reduction in the number and staff of employees organization, the employer must pay (part 1 of article 178 of the Labor Code of the Russian Federation):

Severance pay in the amount of average monthly earnings - paid on the day of dismissal.
Average monthly earnings for the period of employment within two months from the date of dismissal (including severance pay) - is paid to a dismissed employee if he has not found another job within two months from the date of dismissal. For confirmation, the former employee must present a work book.
Average monthly earnings for the third month from the date of dismissal - paid in exceptional cases, subject to certain conditions:

the employee registered with the employment service within two weeks after dismissal;
within the third month, the employee was employed by a new employer;
the right of the former employee to receive the specified payment is confirmed by the decision of the employment service.

! Note: The Labor Code of the Russian Federation, namely Part 1 of Article 178, provides for the above payments in relation to employees organization... If the employer is an individual entrepreneur, then severance pay and other compensation payments upon dismissal due to a reduction in the number and staff of employees are paid without fail only when they are provided for by an employment contract (part 2 of article 307 of the Labor Code of the Russian Federation, Determination of the Constitutional Court of the Russian Federation dated 03.20.2014 No. 476-О , Cassation ruling of the Khabarovsk Regional Court dated 09.07.2010 in case No. 33-4591).

Personal income tax and insurance contributions to the Social Insurance Fund, Pension Fund of the Russian Federation, FFOMS are not charged on the amount of severance pay, as well as on the amount of payments in the form of average monthly earnings for the period of employment, if the amount of these payments as a whole does not exceed three times the size of the average monthly earnings (clause 3 of article 217 of the Tax Code of the Russian Federation, subparagraphs "d" 2, part 1, article 9 of the Federal Law No. 212-FZ, subparagraphs 2 of paragraph 1 of article 20.2 of the Federal Law No. 125-FZ). In the part that exceeds the specified limit, compensation payments to employees in case of reduction are subject to personal income tax and contributions.

So, we examined the procedure for the employer when reducing the number or staff of employees: what documents and in what time frame must be drawn up. If you carry out all activities in strict accordance with the norms of the law, then inspections of the regulatory authorities in the field of employment, as well as litigation regarding the reinstatement of dismissed employees at work, you are not afraid.

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Normative base

Labor Code of the Russian Federation
Tax Code of the Russian Federation
Federal Law of 19.04.1991 No. 1032-1 "On employment of the population in the Russian Federation"
Federal Law No. 212-FZ of July 24, 2009 "On Insurance Contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Mandatory Medical Insurance Fund"
Federal Law of 24.07.1998 No. 125-FZ "On compulsory social insurance against industrial accidents and occupational diseases"
Decree of the Government of the Russian Federation of 04.16.2003 No. 225 "On work books"

How to get acquainted with the official texts of these documents, find out in the section

Experts from the Legal Consulting Service GARANT spoke about the procedure for dismissal in connection with a reduction in the number or staff of employees, including employees of retirement age and pensioners

10.03.2017

In accordance with paragraph 2 of the first part of Art. 81 of the Labor Code of the Russian Federation, an employment contract may be terminated at the initiative of the employer in connection with a reduction in the number or staff of the organization's employees. At the same time, the legislator has established a number of restrictions that must be applied when dismissing employees in connection with a reduction in the number or staff of the organization's employees. So, in particular, in Art. 261 of the Labor Code of the Russian Federation established a ban on dismissal under clause 2 of part one of Art. 81 of the Labor Code of the Russian Federation for pregnant women and women with children under the age of three. The dismissal of an employee due to a reduction in the number or staff of employees during the period of his temporary incapacity for work and during his vacation is also not allowed (part six of article 81 of the Labor Code of the Russian Federation).

Labor legislation does not establish any specifics of dismissal to reduce the number or staff of persons of retirement age. Their right to remain at work is assessed on an equal basis with other employees on a general basis (see, for example, the appeal ruling of the IC in civil cases of the Omsk Regional Court dated 09.09.2015 in case No. 33-6358 / 2015, the decision of the Abzelilovsky District Court of the Republic of Bashkortostan dated 02.12. 2015 in case No. 2-1357 / 2015). The reduction of employees who are retired is also carried out on a general basis (see, for example, the decision of the Kezhemsky District Court of the Krasnoyarsk Territory of June 27, 2013 in case No. 2-367 / 2013). Accordingly, the employer in this case must comply with all stages of dismissal on the indicated grounds, as well as provide such employees with all the guarantees and compensation that are due.

Downsizing or Staffing Procedure

The procedure for terminating an employment contract due to redundancy can be divided into the following stages:

decision making on staff reduction;
notification of the employee about the termination of the employment contract;
offer to the employee of vacant positions;
execution of a dismissal order;
payment to the employee of all amounts due to him (including compensation).

Decision to reduce the number or staff

The employer's decision to reduce the number or staff of employees, as a rule, is formalized by the order (decree) of the employer, the form of which is not legally approved. After the issuance of the order, the employer must approve a new staffing table, in which the redundant positions (staff units) are no longer indicated.

Employees subject to dismissal in connection with redundancy are determined by the employer, taking into account the number of staffing positions remaining in the staffing table for each position (profession, specialty), as well as the advantages in leaving work, provided for in Art. 179 of the Labor Code of the Russian Federation.

In accordance with part one of Art. 179 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) in case of a reduction in the number or staff of employees, the preferential right to remain at work is granted to employees with higher labor productivity and qualifications.

With equal labor productivity and qualifications, preference in leaving work is given to families - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is their constant and main source of livelihood); persons in whose family there are no other workers with independent earnings; employees who received a work injury or an occupational disease while working for this employer; invalids of the Great Patriotic War and invalids of military operations to defend the Fatherland; employees who improve their qualifications in the direction of the employer without interrupting work.

The collective agreement may provide for other categories of workers who enjoy the pre-emptive right to remain at work with equal labor productivity and qualifications (parts two and three of article 179 of the Labor Code of the Russian Federation).

As you can see, the retirement age and retirement of an employee is not a reason either for his dismissal in the first place, or for his predominant leaving at work while reducing the number or staff of the organization's employees (part six of Art. 81 and Art. 179 of the Labor Code of the Russian Federation).

As follows from the provisions of Art. 179 of the Labor Code of the Russian Federation, realizing the pre-emptive right of employees to remain at work in case of layoff, the employer first of all compares their labor productivity and qualifications, and then (with equal labor productivity and qualifications of several employees) the comparison is carried out according to other criteria.

In other words, all those named in the second part of Art. 179 of the Labor Code of the Russian Federation, the circumstances of the employee's personal life, which are not directly related to his work, can be taken into account only with equal labor productivity and qualifications, after determining the main issue of the pre-emptive right to keep persons with higher qualifications and labor productivity at work ( the appeal ruling of the Investigative Committee on civil cases of the Supreme Court of the Kabardino-Balkarian Republic dated February 27, 2013 in case No. 33-199 / 2013, the appeal decision of the Investigative Committee on administrative cases of the Oryol Regional Court dated August 22, 2013 in case No. 33-1805 / 2013)

From the rules of Art. 179 of the Labor Code of the Russian Federation it also follows that the preemptive right can be exercised only between employees holding the same positions in a situation where there is a reduction of one or several staff units for this position, and at least one position, the labor function for which is performed laid off workers remains. Indeed, only in this case, it is possible to make a choice between several employees based on their productivity and skill level (see also the appeal ruling of the Moscow City Court dated 10.01.2014 No. 33-404 / 14, the appeal ruling of the Investigative Committee on Civil Cases of the Supreme Court of the Republic of Bashkortostan dated 05.03 .2013 in case No. 33-2118 / 2013, appellate ruling of the Investigative Committee in civil cases of the Astrakhan Regional Court dated 25.07.2012 in case No. 33-2098 / 2012).

Notification of termination of an employment contract due to a reduction in the number or staff

Employees are notified of the upcoming dismissal due to a reduction in the number or staff in person and under signature at least two months before dismissal (part two of Article 180 of the Labor Code of the Russian Federation) The law does not establish a maximum warning period, therefore, it can be more than two months. A free-form warning usually indicates a specific date of dismissal. Legislation does not prohibit giving workers notice of upcoming layoffs while they are on vacation or sick leave.

The employer must notify in writing the elected body of the primary trade union organization (if any), as well as to the authorities, about the possible termination of employment contracts with employees in connection with the decision to reduce the number or staff of employees. employment services (part one of article 82 of the Labor Code of the Russian Federation, clause 2 of article 25 of the Law of the Russian Federation of 19.04.1991 No. 1032-1 "On employment of the population in the Russian Federation"). Notices are drawn up by the employer in any form (for example, in the form of a letter on the employer's letterhead). The information that must be reported to the employment service is listed in paragraph 2 of Art. 25 of the said Law.

Vacant positions in case of reduction of the number or staff

According to Art. 81 of the Labor Code of the Russian Federation, dismissal to reduce the number or staff is allowed if it is impossible to transfer the employee with his written consent to another job that the employer has. The employer is obliged to offer the employee all vacant positions or work that he has in the area, both the relevant qualifications of the employee and lower positions or lower-paid work that the employee can perform taking into account his state of health. The employer is obliged to offer vacancies in other localities, if this is provided for by the collective agreement, agreements, labor contract.

The Labor Code of the Russian Federation does not define the concepts of "vacant position", "vacancy". If we proceed from the meaning that is embedded in these terms, then a vacant position can be defined as a position that is in the staffing table, but for which not a single employment contract has been concluded. Accordingly, the position is not vacant if an employment contract is concluded for it:

with a part-time job (see, for example, the ruling of the St. Petersburg City Court dated 07.07.2011 No. 33-10321);
with an employee who temporarily does not perform labor duties (for example, is on long leave), but for whom, in accordance with the law, the place of work (position) is retained (see, for example, the ruling of the Omsk Regional Court of 15.02.2012 No. 33-1239 / 2012) ...

In the opinion of Rostrud, set out in the letter dated July 29, 2009 No. 2263-6-1, the employer is not obliged, but has the right to offer the employee who is dismissed due to the reduction of the employee the position of an employee who is on parental leave.

From the provisions of part three of Art. 81 and part one of Art. 180 of the Labor Code of the Russian Federation, it follows that the employer is obliged to offer other existing work during the entire period of measures to reduce the number or staff of employees. In other words, the employer must offer the employee to be dismissed another job (position) not only on the day of warning of the upcoming dismissal, but also throughout the entire period of the notice of dismissal every time a vacant position (job) appears. At the same time, both existing positions and those newly introduced during the period of redundancy measures should be proposed (see, for example, the ruling of the Omsk Regional Court dated 23.05.2007 No. 33-1597, the ruling of the Moscow City Court dated 14.05.2012 No. 33-11068, Review civil cases considered in the Nazarovskiy city court for 2010 and 6 months of 2011).

Since the measure to reduce the number (staff) of employees ends on the day of dismissal, the employer must offer the available vacancies on that day as well (see, for example, the determination of the Perm Regional Court dated 03.10.2011 No. 33-9870). If the employer does not have vacant positions or the employee refuses to transfer to the proposed vacancies, the employee may be fired.

Dismissal order due to downsizing or staff reduction

On the day specified in the notice of dismissal due to a reduction in the number or staff of employees (if the employment contract is not terminated earlier than this date on the basis of part three of Article 180 of the Labor Code of the Russian Federation), the employer must draw up the termination of the employment contract in accordance with the rules established by Art. 84.1 of the Labor Code of the Russian Federation.

So, the employer must issue an order to dismiss the employee, familiarize the dismissed employee with its content, make an appropriate entry in his work book, issue, at the employee's request, duly certified copies of documents related to the work. In addition, by virtue of paragraph 3 of Part 2 of Art. 4.1 of the Federal Law of December 29, 2006 No. 255-FZ "On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Maternity", the employer on the day of dismissal must issue the employee a certificate of the amount of earnings for two calendar years preceding the year of termination of work (service, other activity), in the form and in the manner established by order of the Ministry of Labor and Social Protection of the Russian Federation of April 30, 2013 No. 182n.

Downsizing or downsizing payments

On the day of dismissal, the employer must make a final settlement with the employee (Article 140 of the Labor Code of the Russian Federation). So, the employee must be paid:

the salary due to the employee for the hours worked, not yet paid to him by the day of dismissal;
monetary compensation for unused leave during work with this employer (when an employee is dismissed due to staff reduction before the end of the working year, on account of which he has already received annual paid leave, deduction for unworked vacation days is not made (part two of Article 137 of the Labor Code RF));
severance pay in the amount of average monthly earnings (Article 178 of the Labor Code of the Russian Federation);
additional compensation in case of termination of the contract before the expiration of the notice of dismissal (part three of article 180 of the Labor Code of the Russian Federation).

This completes the procedure for reducing the number or staff of employees.

In the future, for the dismissed employee for the period of employment, but not more than two (in exceptional cases, three) months from the date of dismissal, the average monthly earnings are retained. The severance pay paid upon dismissal in the amount of the average monthly earnings is included in the account of the average earnings (part one of article 178 of the Labor Code of the Russian Federation). Accordingly, you do not need to pay extra for the first month of job search. In the second and third months after dismissal, the average earnings are paid only for those days when the employee did not work at the new place of work. To receive an average earnings in the second month after dismissal, an employee only needs to present a passport or other identity document and a work book, which does not contain a record of employment. The employer, in our opinion, is also obliged to keep the average earnings for the pensioner for the third month after dismissal due to the reduction in the number or staff of employees, if the former employee cannot find another job during this period and submits an appropriate document from the employment service.

The procedure for calculating average earnings for calculating severance pay and average earnings for the second and third months of job search is determined by Art. 139 of the Labor Code of the Russian Federation and the Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation No. 922 of 24.12.2007.

Dear Dmitry,

Dismissal
due to a reduction in the number or staff of employees

IN
in accordance with paragraph 2 of the first part of Art. 81
Of the Labor Code of the Russian Federation, an employment contract may be terminated by the employer in connection with
reduction in the number or staff of employees of the organization, individual
entrepreneur.

IN
labor law there is no official explanation of what exactly is
downsizing, and what downsizing, and how these concepts
correlate. In our opinion, the reduction in the number should be understood as
reduction of staff for a certain position while leaving alone
positions in the staffing table, and under the reduction of staff - the elimination of all
staff units for one or more positions. However, since the procedure
layoffs of workers both in case of downsizing and downsizing
is the same, the identification of features by which these categories differ does not have
practical value.

An exception
from the staffing table of vacant posts (staff units)
number (staff) of employees is not.

Procedure
abbreviations can be divided into the following steps.

1. Acceptance
employer decisions to reduce the number (staff) of employees and approval
new staffing table.

2. Definition
the circle of employees who will be affected by measures to reduce the number
(state).

3. Written
notification of the decision taken by the employment service and the trade union (if any).

4. Personal
warning each employee whose staffing unit is subject to reduction, about
the upcoming dismissal and offering him another existing job.

5. Accounting
reasoned opinion of the representative body of employees or obtaining
the consent of such a body in the cases provided for in Articles 39, 373, 374 and 405
Labor Code of the Russian Federation.

6. Design
dismissal of employees under item 2 of part
first art. 81 of the Labor Code of the Russian Federation in the general procedure established by Art. 84.1 of the Labor Code of the Russian Federation, with payment of all
amounts due.

Dismissal
due to a reduction in the number or staff of employees, it is legal when
compliance with the following conditions:

Reduction
the number (staff) of workers actually took place, that is, in fact
the case, the abolition of functional rights and obligations
the content of the abbreviated position, and not, for example, a simple renaming
any of the positions to be cut.

Constitutional
The court of the Russian Federation in the definition of 12/17/2008 N 1087-О-О
confirmed the obligation of such a condition as the reality of the reduction, and at the same time
indicated that the employer cannot be limited in the right subsequently
restore the abolished post in the staffing table in order to implement
effective economic activity and rational property management,
but in such cases, the possibility of abuse of the right with
the side of an employer using redundancies for layoffs
specific person. And since in such cases the employee can learn about
the restoration of the position he occupied in the staffing table only after
the expiration of part one
art. 392 of the Labor Code of the Russian Federation of the term, the court has no right to refuse to restore
missed procedural deadline without examining the factual circumstances
cases that can serve as the basis for such restoration;

Dismissal
produced in compliance with the procedure established by law (clause 23 of the resolution of the Plenum of the Supreme Court of the Russian Federation
from 17.03.2004 N 2).

paragraph 2
or 3 parts one
of this article is allowed if it is impossible to transfer the employee from his
written consent to another job available to the employer (as vacant
position or work corresponding to the qualifications of the employee, and vacant
lower position or lower paid job) that an employee can
carry out taking into account his state of health. In this case, the employer is obliged
offer the employee all the vacancies that meet the specified requirements available
him in the area. Offer vacancies in other localities employer
is obliged, if provided for by the collective agreement, agreements, labor
agreement.

The procedure for reducing the staff - step-by-step instructions for it are described in the Labor Code of the Russian Federation, and additional explanations are given by the Supreme Court of the Russian Federation. The proposed article describes how it is correct from the point of view of the law to reduce the state.

How to properly reduce an employee due to staff reduction: a procedure

You can legally dismiss an employee by following the step-by-step instructions on reducing the number of employees and a number of rules:

Offer all available vacancies that correspond to the qualifications of the employee (Article 81 of the Labor Code of the Russian Federation).
When choosing employees for redundancy, remember about the preemptive right to stay at work and the impossibility of dismissing some employees under the Labor Code of the Russian Federation (Article 179 of the Labor Code of the Russian Federation).
Pay compensation provided for by the current legislation and local acts of the organization (Articles 178, 180 of the Labor Code of the Russian Federation).

The step-by-step reduction of the staff includes the following stages:

Informing employees about the upcoming staff reduction in accordance with Art. 180, 296, 318 of the Labor Code of the Russian Federation.
Informing the trade union body about the upcoming reduction. As a general rule, Part 1 of Art. 82 of the Labor Code of the Russian Federation, it is made 2 months before dismissal. If we are talking about a mass dismissal, then the notification must be carried out 3 months in advance.
Offering redundant employees of all possible vacancies that meet their qualifications, under Part 1 of Art. 180 of the Labor Code of the Russian Federation.
Registration of dismissal of employees who made a decision to dismiss before the expiration of the established period. At the same time, it is obligatory to pay all the required compensations, taking into account the additional compensation for early dismissal under Part 3 of Art. 180 of the Labor Code of the Russian Federation.
Dismissal of employees after the expiration of the period specified in the notices.

How to properly warn an employee about dismissal under the headcount reduction clause

It is necessary to talk about how to properly cut an employee to reduce staff taking into account the obligation to warn the employee about the upcoming dismissal. It is necessary to observe the procedure and terms of such warning.

On the timing of reducing the number of employees, Article 180 of the Labor Code of the Russian Federation says that the minimum warning threshold for an employee is 2 months. The employer can warn for a longer period, the law does not contain such restrictions. The parties have the right to agree on early dismissal.

The second important aspect is the form of the warning. The notification always takes place in writing, under the signature, individually for each employee. The law does not establish a rigid form of such a notice, but it is important that the grounds for dismissal and deadlines follow from it.

The law does not specify exactly how the notification should be sent. The main thing is that it should be drawn up in writing, signed and in person. At best, it should be handed over directly to the employee, but such an opportunity is not always available. As a last resort, the notice can be sent by registered mail, for example, if the employee is sent on a long trip.

It is in the employer's interest to draw up a notice in 2 copies and keep the copy signed by the employee.

Who can't be fired

The law distinguishes 2 separate categories of employees - those who:

cannot be made redundant due to staff cuts under any circumstances;
enjoy the preferential right to remain at work.

female employees in a state of pregnancy;
female employees raising children under the age of 3;
single mothers raising a disabled minor;
single mothers raising a child under the age of 14;
staff raising a child without a mother;
the only breadwinners of a disabled minor;
the only breadwinners of a child under 3 years old in a large family, provided that three children are minors and the second parent is not employed.

Art. 81 of the Labor Code of the Russian Federation supplements this list with employees who are on vacation or disabled, because dismissal at the initiative of the employer during this period is prohibited.

Preemptive right to remain at work

The priority in leaving work is determined primarily by the Labor Code of the Russian Federation, but additional categories of workers can enjoy this right on the basis of a collective agreement.

In Art. 179 of the Labor Code of the Russian Federation defines the categories of workers who have an advantage in choosing persons falling under the layoff. The main thing an employer should focus on when choosing employees to stay at work is:

qualification;
labor productivity.

The preference is given to those who have these indicators higher. If they are equal, then the priority under Part 2 of Art. 179 of the Labor Code of the Russian Federation is given to:

persons with a family in which 2 or more dependents remain on their support (while the assistance received by the dependent must be constant, being the main source of finance for existence);
employees who improve their qualifications on the job;
the only breadwinner in the family;
employees who, while working at the enterprise where the layoff occurs, received an occupational disease or injury;
invalids of the Second World War and other invalids who became them as a result of participation in hostilities to defend the Motherland.

Problems can arise when an employee thinks that the employer has chosen him unfairly for layoffs and that his productivity is higher than that of the abandoned employees. In such a situation, he can go to court. An example of proving such a fact and taking it into account by the court is the decision of the Bogatovsky District Court dated February 26, 2015 No. 2-60 / 2015 2-60 / 2015 ~ M-42/2015 M-42/2015.

What are the guarantees and compensations for laid-off workers

Art. 178, part 3 of Art. 180 of the Labor Code of the Russian Federation guarantees such employees:

Full remuneration for all hours worked in the last working month.
Monetary compensation for unused vacation.
Severance pay in the amount of average monthly earnings.
Average monthly earnings for 2 months as the period of employment, offset by severance pay. The period for keeping earnings can be increased to 3 months by the decision of the employment agency, if the employee registers with it within 2 weeks after the termination of the employment contract and is not employed. For workers in the Far North, this period can be increased to six months under Art. 318 of the Labor Code of the Russian Federation.

Additional compensation is provided for early dismissed employees - the average earnings for the entire time by which the period of work after the warning was reduced, including when the warning was issued more than 2 months in advance or its validity period was extended (appeal ruling of the Sverdlovsk Regional Court dated 02.14.2018 to case No. 33-2730 / 2018).

An exception to the calculation of severance pay is for seasonal workers. For them, it is paid in the amount of the average earnings for 14 days.

What are the features of reducing a part-time job

Combining employment under Art. 60.1 of the Labor Code of the Russian Federation represents the performance of other work in free time from the main job for the same employer or for another.

At the same time, the law does not make an exception regarding the procedure for dismissing a part-time employee on the basis of Part 2 of Art. 81 of the Labor Code of the Russian Federation, and Art. 287 of the Labor Code of the Russian Federation says that guarantees are provided to such employees in full, with the exception that part-time workers cannot count on additional guarantees provided to employees of the Far North. They are provided only at the main place of work.

Regardless of whether the employee is an external or internal part-time worker, he must be informed 2 months in advance about the forthcoming reduction of his position and receive all possible offers of vacancies that he may occupy due to his qualifications. In case of refusal, he is dismissed according to the general rules.

IMPORTANT! For each place of work, the parties conclude an independent employment contract, an order is issued to hire an employee for a position.

This means that the reduction of a part-time job while reducing the staff is not a reason for his dismissal from the main position, even if it is an internal part-time job.

Grounds for challenging the dismissal of an employee to reduce staff

It is not uncommon to go to court to challenge dismissal for staff redundancy. The foundations for the consideration of such cases were laid by the Constitutional Court of the Russian Federation, having determined that the personnel policy of the enterprise belongs to the jurisdiction of the employer and he has the right, at his discretion, to carry out a reasonable reduction of staff in accordance with the norms of the current legislation (for example, the definition of the Constitutional Court dated December 22, 2015 No. 2768-О).

Among the reasons for the position of an employee in disputes over staff reductions, it is worth noting:

Violation by the employer of the downsizing procedure. The employer is responsible for proving compliance with it. Thus, the Sovetskiy District Court of Samara made a decision of 05/07/2017 in case No. 2-2200 / 2017, satisfying the claims of the plaintiff, since the employer could not document the compliance with the order of staff reduction.
Dismissal of an employee for reasons other than the actual reduction of staff. To establish such facts, the court takes into account the actual change in the number of the department. An example of this is the decision of the Buinaksk City Court dated June 29, 2017 in case No. 2-467 / 2017.

So, the decision to reduce the number of employees is fully up to the employer. However, at the same time, he must comply with all legal requirements related to the reduction process itself, the payment of compensation and the maintenance of guarantees to former employees.

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